                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                      ESTEVEZ V. ARANA


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 ALAN L. ESTEVEZ, APPELLEE,
                                              V.

                                 SHARON ARANA, APPELLANT.


                             Filed August 2, 2016.   No. A-15-854.


       Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Appeal
dismissed.
       Jennifer A. Thompson for appellant.
       Amy Sherman for appellee.


       MOORE, Chief Judge, and IRWIN and PIRTLE, Judges.
       MOORE, Chief Judge.
                                      INTRODUCTION
        Sharon Arana appeals from orders of the district court for Sarpy County, which made
certain rulings on Alan L. Estevez’ application to prevent child abduction and motion for
temporary custody, and denied Arana’s motion to vacate the temporary order entered by the court.
Because we determine that the temporary order is not a final, appealable order, we dismiss this
appeal.
                                       BACKGROUND
Texas Child Custody Order.
      Alan L. Estevez and Arana are the parents of a minor child born in July 2008. Estevez and
Arana were never married. In 2010, a Texas court entered an order (the Texas order) naming Arana



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and Estevez as “Joint Managing Conservators” of the child. At all times relevant to the present
appeal, Estevez has resided in Minnesota. At the time of the Texas order, Arana resided in Texas
and was employed by the United States Air Force. Arana appeared with her attorney for the hearing
in the Texas custody proceedings; Estevez did not appear. The Texas order granted Arana “the
exclusive right to designate the primary residence of the child without regard to geographic
location” and “the right to maintain possession of any passports of the child” subject to “the
requirements for delivery” of the child’s passport to Estevez upon notice of his intent to travel
outside of the United States during a “period of possession” of the child. The Texas order set forth
Estevez’ periods of “possession of the child” and granted Arana “possession of the child at all
other times not specifically designated.” Estevez was ordered to pay child support of $222 per
month.
        In May 2012, the Texas court entered an order finding that it lacked jurisdiction to exercise
continuing, exclusive jurisdiction over a custody modification action filed by Arana since the
child’s home state was other than Texas, and the court dismissed the modification action.
Nebraska Registration and Initial Modification Proceedings.
         In November 2012, Estevez filed a petition in the Sarpy County District Court for
registration, enforcement, and modification of the Texas order. He alleged that Nebraska was a
more convenient forum for the case because the child had resided with Arana in Nebraska since
September 2010 and sought, among other things, a determination that Nebraska had jurisdiction
to register and retain jurisdiction over custody matters with respect to the child. Subsequently, the
Texas order was filed by the Sarpy County Clerk of the Court and notice was sent to Arana
informing her of her right to contest the validity or enforcement of the registered Texas order.
         On November 27, 2012, Estevez filed an application to modify custody in the district court.
Neither this pleading nor any of Estevez’ pleadings filed prior to July 6, 2015 included a request
for removal of the child to Minnesota.
         On December 28, 2012, Arana filed an answer and counter complaint. Arana asked for a
determination that Nebraska was the child’s home state and for modification of the Texas custody
order. She sought modification because Estevez had not “followed and abided by” the Texas order,
had lacked consistent contact with the child, and had “personal issues which may affect the welfare
of the child” and because modification was in the child’s best interests.
         Subsequently, the parties filed various motions and pleadings not relevant to the present
appeal except that on April 1, 2014, Arana filed an amended answer and counter complaint in the
district court in which, in addition to her previously stated reasons for seeking modification, she
alleged that her employer, the U.S. Air Force, was changing her duty station to Osan AB, South
Korea, and that it would be in the child’s best interests to modify the Texas order and allow for
removal of the child from Nebraska. On May 5, Arana filed a motion for a temporary change in
parenting time, asking the court to fashion a temporary parenting plan so that Estevez could see
the child and the child could also accompany Arana to Korea from June 2014 until June 2015.
         On May 16, 2014, the district court entered an order awarding Arana temporary possession
of the child and granting her the right to remove the child to Korea temporarily, subject to the
visitation provisions set forth in the order. The court granted Estevez visitation from May 28 to



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June 14, for three weeks in December 2014 or January 2015 when Arana returned to the U.S. on
leave, and for “the first four weeks” upon Arana’s return from Korea. The court granted Estevez
one hour of visitation per week via Skype and suspended Estevez’ child support obligation from
June 1, 2014 until June 1, 2015. The court also granted a motion to continue the previously set trial
date in the underlying modification proceedings and set trial for June 2, 2015.
Appeal in Case No. S-14-443.
        Estevez appealed from the district court’s May 16, 2014 order. His appeal was dismissed
by the Nebraska Supreme Court for lack of jurisdiction pursuant to Neb. Ct. R. App. P.
§ 2-107(A)(2). Estevez’ motion for rehearing was overruled and the Supreme Court’s mandate
issued on July 25, 2014.
Dismissal of Initial Modification Proceedings.
        While Estevez’ appeal in case No. S-14-443 was pending and after issuance of the
Nebraska Supreme Court’s mandate, the parties continued to file pleadings in the modification
proceedings, only some of which have been included in the present record on appeal. For purposes
of resolving the present appeal, we note Arana’s motion filed on June 19, 2015, seeking judgment
on the pleadings or, alternatively, dismissal of Estevez’ modification complaint for failure to state
a claim upon which relief may be granted. She asserted that Estevez’ complaint should be
“dismissed on Progression Standards,” that Estevez had never filed an application for removal of
the child from Nebraska, and that she was the “only party with an Application for Removal from
Nebraska in this case.” She alleged that she would be moving to Bogota, Columbia with the U.S.
Air Force and attached a copy of the “REQUEST AND AUTHORIZATION FOR PERMANENT
CHANGE OF STATION-MILITARY” for 24 months in Columbia. She alleged that if the court
denied her application for removal, there would be no parent residing in Nebraska after she moved
and that the court should not “leave a minor child in Nebraska homeless and alone.”
        On July 6, 2015, the district court entered an order granting Arana’s motion, which the
court treated as a motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6). The court found
that Estevez had never filed an application for removal and thus had not made a request for relief
that the court had the authority to award. Accordingly, the court dismissed Estevez’ operative
complaint. Arana’s operative counter complaint was dismissed by the court in a docket entry on
July 8. The parties did not appeal from either of those orders.
Subsequent Proceedings.
        Following a hearing on a motion and affidavit for an order to show cause filed by Estevez,
the district court entered an order to show cause on July 8, 2015, ordering Arana to appear and
show cause as to why she should not be held in contempt for failure to follow the court’s order of
May 16, 2014.
        On July 11, 2015, Estevez filed a petition in the district court for expedited enforcement of
a child custody determination pursuant to Neb. Rev. Stat. § 43-1255 (Reissue 2008). Estevez
alleged Arana had refused to provide him with any contact information upon her return from
Korea. He alleged that he did not know the current physical address of Arana and the child and




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asked the court to order that the child be returned to and remain in Nebraska so that he could
exercise his parenting time pursuant to both the Texas order and the May 2014 Nebraska order.
Estevez stated that if Arana was unable to stay in Nebraska or had no responsible adult that the
child could stay with, he would immediately relocate to Nebraska and take custody of the child.
        In a separate pleading filed on July 12, 2015, Estevez requested the issuance of a warrant
pursuant to Neb. Rev. Stat. § 43-1258 (Reissue 2008). In that pleading, Estevez indicated that
Arana had been in Alabama and Arizona after returning from Korea, that she was to report to
Bogota, Columbia at some point for a 2-year period, and that she had refused to provide specific
information about plans to take the child to Columbia, which information should have been
provided pursuant to the Texas order. Estevez stated that Arana had denied him parenting time
awarded pursuant to the court’s May 2014 order. He alleged that Arana was likely to remove the
child from Nebraska and the U.S. and take her to Columbia without court approval, and he asked
the court to issue a warrant for law enforcement officials to take physical custody of the child and
make appropriate arrangements for her placement pending further hearing.
        On July 12, 2015, Estevez filed a petition for emergency abduction prevention orders in
the district court pursuant to Neb. Rev. Stat. § 43-3901 et seq. (Reissue 2008), the Uniform Child
Abduction Prevention Act. Estevez alleged that the child was at imminent risk of removal by Arana
to Bogota, Columbia. He alleged that Arana and her spouse had orders from the U.S. Air Force to
proceed directly to Columbia after Arana finished certain training in Alabama on July 10 and that
Arana had strong familial ties to Columbia. He alleged that Arana had not allowed him to see the
child for over a year despite the provisions of the court’s May 2014 order and had not provided
contact information since returning from Korea. Estevez asked the court for an order stating that
the child could not be removed from Nebraska or the U.S. and ordering her return to Nebraska so
that he could exercise his parenting time pursuant to the May 2014 order and the Texas order. He
asked the court to grant him temporary custody of the child and removal to Minnesota in the event
that Arana was unable to stay in Nebraska or the child had no responsible adult with which to stay.
Alternatively, he asserted that he would relocate to Nebraska and take custody of the child. Estevez
asked the court to employ any or all of the prevention methods set forth in § 43-3908 to protect
the child and to issue a warrant to take physical custody of the child as provided for in § 43-3901.
        On July 17, 2015, the district court issued an emergency abduction prevention order and
ordered Arana to surrender the child’s passport. The court found that the child, who may be
traveling with or residing with Arana or Arana’s husband, was at imminent risk of removal from
the U.S. possibly to the country of Columbia. The court found that the child could not be removed
from the U.S. by Arana, her husband, or someone acting on their behalf and ordered the child’s
return to Nebraska. The court indicated that it would set the matter for a full hearing upon the
child’s return to Nebraska.
        Prior to the full hearing on the emergency abduction prevention order, Estevez filed three
more pleadings. On July 20, 2015, he filed an ex parte motion for temporary custody and
permission to remove the child to Minnesota. In the ex parte motion, Estevez made similar
allegations to those set forth in his previous pleadings filed after Arana’s return from Korea. In
general, he alleged that he had been denied court-ordered parenting time, that Arana intended to
take the child to Columbia, and that the parties had a very antagonistic relationship. Estevez asked



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the district court to grant him custody of the child and allow him to remove the child to Minnesota
on a temporary basis pending trial on his application to modify. On July 20, he also filed a motion
seeking to reinstate the previous modification case and to amend his complaint upon reinstatement
to request removal of the child to Minnesota and to include facts that had developed since dismissal
of the previous modification case. On July 27, Estevez filed a complaint to modify the
duly-registered foreign custody order.
        On July 28, 2015, a hearing was held on the district court’s ex parte emergency abduction
prevention order. The transcript reveals that Estevez’ attorney delivered the summons and a copy
of the complaint to modify on Arana on this date while appearing at this hearing. The record on
appeal only includes a very limited partial bill of exceptions from this hearing, which indicates
only the date and time, who was present, and the matter to be addressed as stated by the court at
the very beginning of the hearing. The portion of the hearing requested for inclusion in the bill
ends immediately after Estevez’ attorney called him to the stand. We have no indication of what
testimony was given by Estevez, whether additional witnesses were called or any exhibits were
received, or whether other matters were addressed at the hearing.
        On July 30, 2015, Arana filed an ex parte motion, asking the district court to vacate the
emergency abduction prevention order and to return the child’s passport.
        Another hearing was held before the district court on August 11, 2015. Again, we have
been provided with only a partial bill of exceptions that gives only a glimpse of what took place at
the beginning and end of the hearing, but does not include any evidentiary portion of the hearing
or discussions between the court and counsel that might have taken place during the rest of the
hearing. The first segment included in the bill indicates the time the hearing began and who was
present. The court stated that it was a continued hearing on the emergency abduction prevention
order and that the direct examination of Arana had been completed at the previous hearing. This
portion of the bill ends as soon as Arana is called to the stand.
        The record on appeal includes a supplemental bill of exceptions that begins when the
August 11, 2015 hearing resumed later in the day. The transcribed portion of the proceedings that
afternoon begins with the following statement by the district court:
                Okay. Well, I’m not taking this under advisement.
                I disagree with you, [Arana’s attorney], because I have to give full faith and credit
        to the Texas decree. Which means she has the right to serve the location. So I’m going to
        release the passport.
                However, I’m taking into consideration the Motion and Application to Modify the
        Decree. And, therefore, I’m going to enter the following temporary order[.]

The court then stated that it was taking temporary custody of the child, allowing her to go to
Columbia, providing that Estevez was to have daily Skype contact and school break visitation with
the child, and suspending Estevez’ child support obligation. Additional topics discussed by the
parties and the court before the conclusion of the hearing were transportation costs, the mechanism
for holding Arana in contempt if she did not comply, and what protection Arana might enjoy “for
any contempt on these orders” under the “Uniform Code of Military Justice.” At the close of the




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hearing, the court reminded Arana that it “ha[d] custody,” and Arana and her attorney assured the
court that Arana would comply.
        On August 14, 2015, the district court entered a “Temporary Order,” denying Estevez’
application pursuant to the Uniform Child Abduction Act and ordering that the child’s passport be
returned to Arana. The court also found that “the pending Motion for Temporary [sic] should be
considered,” and in ruling on that motion, the court placed “temporary custody” of the child with
the court, ordered Skype contact between Estevez and the child each day at 7 p.m. for a period of
not less than half an hour beginning August 17, and ordered visitation between Estevez and the
child from one week after school dismissal to one week before the start of school and also during
any period of mid-deployment leave in the U.S. that Arana might have. The court also suspended
Estevez’s child support obligation and ordered the parties to split the cost of transportation. All
other terms of the Texas order were to remain in place. The August 14 order does not contain any
indication of a time-frame for the modified provisions made nor is there a notation for a future
hearing.
        The parties filed several motions after the district court entered its August 14, 2015 order.
On August 18, Estevez filed a motion to reconsider temporary orders. He specified the child’s
school schedule in Columbia and made further requests for parenting time. On August 24, Arana
filed a motion, asking the court to vacate the temporary order of August 14 and to retain only the
portion of the order denying Estevez’ application to prevent child abduction. She also filed a
motion for attorney fees, alleging that Estevez’ motion to reconsider was a frivolous action. These
motions were denied by the court in an order entered on September 14. Arana appealed on
September 14.
                                   ASSIGNMENTS OF ERROR
        Arana asserts that the district court erred in modifying the Texas order (1) without notice
or opportunity to be heard on a modification and (2) without a complaint to modify properly served
on her.
                                    STANDARD OF REVIEW
        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. Al-Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635
(2016).
                                            ANALYSIS
         Before reaching the issues raised by Arana’s appeal, we first consider Estevez’ assertion
that this court lacks jurisdiction because the order appealed from was not a final appealable order.
An appellate court has the duty to determine whether it has jurisdiction before reaching the legal
issues presented for review. Stevens v. Stevens, 292 Neb. 827, 874 N.W.2d 453 (2016). 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; conversely, an appellate court is without jurisdiction to entertain
appeals from nonfinal orders. In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).




                                                -6-
Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), an appellate court may review three types of
final orders: (1) an order affecting a substantial right in an action that, 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. Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861
N.W.2d 425 (2015).
         The August 14, 2015 order, entitled “Temporary Order,” contained two components. First,
it denied Estevez’ application to prevent child abduction and ordered that the child’s passport be
returned to Arana. This was a final order as it related to the application to prevent child abduction,
however, Arana is presumably not appealing this portion of the order as she ultimately prevailed
on that issue. The second portion of the “Temporary Order” considers the pending “Motion for
Temporary” (presumably Estevez’ ex parte motion for temporary custody and permission to
remove the child to Minnesota) and includes various rulings; including placing temporary custody
with the court, making provisions with regard to Estevez’ Skype contact and visitation with the
child, and suspending Estevez’ child support obligation. Arana appears to be challenging these
provisions, although she is only challenging the lack of notice that such matters would be heard
and the lack of proper service of the complaint to modify upon her. She does not assert error with
regard to any of the specific provisions. Thus, the question becomes whether these provisions in
the temporary order amount to a final, appealable order. The provisions appealed did not determine
the action and prevent judgment and were not made on summary application in an action after
judgment was rendered. Accordingly, we consider whether those provisions of the order were
made during a special proceeding and affected a substantial right.
         A proceeding regarding a child custody determination is considered a special proceeding
under Nebraska law. Belitz v. Belitz, 21 Neb. App. 716, 842 N.W.2d 613 (2014). The temporary
order provisions in question concern custody of the child and thus, this was a special proceeding.
         Next, we consider whether a substantial right of Arana’s was affected. A substantial right
is an essential legal right, not merely a technical right. Pearce v. Mut. of Omaha Ins. Co., 293 Neb.
277, 876 N.W.2d 899 (2016). An order affects a substantial right if it affects the subject matter of
the litigation, such as diminishing a claim or defense that was available to the appellant prior to
the order from which he or she is appealing. Id.
         Whether a substantial right of a parent has been affected by an order in juvenile court
litigation is dependent upon both the object of the order and the length of time over which the
parent’s relationship with the juvenile may reasonably be expected to be disturbed. In re Interest
of Octavio B., 290 Neb. 589, 861 N.W.2d 415 (2015). The Nebraska Supreme Court applied this
rule in Steven S. v. Mary S., supra in determining whether an order in an ongoing child custody
modification proceeding affected a substantial right. At the time of the parties’ divorce, they were
granted joint legal custody, and the father was granted primary physical custody. Subsequently,
the parties both sought a custody modification. They also filed motions seeking temporary custody,
among other things. In ruling on the temporary motions, the district court placed temporary legal
and physical custody with the father, suspended the mother’s visitation, and reappointed a
court-appointed psychologist to further evaluate the mother and make a permanent custody
recommendation. On appeal, the Nebraska Supreme Court determined that this order did not affect



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a substantial right because the order was not a permanent disposition and disturbed the mother’s
relationship with her children only briefly.
        In Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010), a paternity case, the mother
was initially given primary custody and was awarded child support. She filed for a modification,
seeking increased support. The father filed a cross-complaint, seeking custody while the mother
was deployed on active duty. The mother then sought to stay the proceedings under the
Servicemembers Civil Relief Act, 50 U.S.C. app. § 501 et seq. (2006). The district court denied
the motion to stay and granted the father temporary custody and support, to revert back to the
mother after her military deployment period of 400 days. On appeal by the mother, the Nebraska
Supreme Court observed that, as in Steven S. v. Mary S., the modification order was contingent
upon an outside event, that being in the Carmicheal case, the mother’s deployment. The Supreme
Court found that the modification order did not affect a substantial right because the grant of
custody to the father was temporary and would revert to the mother upon her return from active
duty.
        In Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014), the military mother filed a
complaint for child support modification and sought an order allowing her to relocate to Georgia
for a year due to a temporary military assignment. The father filed a counter-complaint, seeking
an award of temporary primary custody during the mother’s assignment to Georgia and a
permanent modification of custody and child support. The district court granted the mother’s
request for removal, construing it as a request for temporary removal pursuant to Neb. Rev. Stat.
§ 43-2929.01 (Cum. Supp. 2012) (concerning changes in parenting time when a custodial parent
is temporarily deployed). The district court did not address the father’s pending counter-complaint
for permanent modification. On appeal by the father, the Nebraska Supreme Court held that
because a court may dispense only temporary relief pursuant to § 43-2929.01(4)(a), the Legislature
did not intend for a truly temporary order entered under that subsection to be characterized as a
final order under § 25-1902. Husky v. Husky, supra. The Supreme Court determined that the order
in question did not affect a substantial right. The order allowed the mother to relocate with her
children for a specified period of less than eight months, maintained the parties’ previous custody
arrangement, only disrupting the father’s right to parenting time which was not substantially
reduced under the order, and contemplated further action by the court upon the mother’s return.
Because the order was truly a temporary order under § 43-2929.01 and because it did not affect a
substantial right, it was not a final order under § 25-1902. We note that § 43-2929.01 was repealed
by Laws 2014, LB 219, § 35, operative date January 1, 2016. This statute was not applied in the
instant case, nevertheless, we find the case to be instructive.
        In the present case, the order placed “temporary custody” (presumably meaning temporary
legal custody) of the child with the court, specified daily Skype contact between Estevez and the
child beginning August 17, 2015, suspended Estevez’ child support, ordered the parties to split the
cost of transportation, and awarded Estevez visitation during any period of mid-deployment leave
to return to the United States that Arana may have. Other provisions of the order required Arana
to provide Estevez with the child’s address, notify him of changes in the child’s address or
residence, place Estevez’ name on medical and school records to allow him access, and keep him




                                               -8-
informed of all medical procedures and “incidences” of the child. The court also ordered the parties
to comply with all other provisions of the Texas order not modified by the temporary order.
        After reviewing the record, including the court’s oral rulings at the conclusion of the
hearing on August 11, 2015, it is clear that the Texas order which placed possession of the child
with Arana continued in effect and was not altered by the August 14, 2015 order. Arana’s right to
maintain possession of the child’s passport as provided in the Texas order was restored by this
order. The only matters that were changed from the Texas order were Estevez’ visitation rights,
the provision of Skype contact, and the suspension of child support. Although the order does not
contain a specific time duration for these provisions, again, it is clear from the record before us
that these provisions were fashioned in response to Arana’s removal of the child in connection
with her deployment to Columbia, which was apparently for a 2-year period. Under these
circumstances, we determine that the order did not affect a substantial right of Arana, was intended
by the court to be a temporary order during the period of her deployment, and is not a final,
appealable order. In reaching this conclusion, we note that the August 14, 2015 order is
substantially similar to the May 16, 2014 order entered at the time Arana was being deployed to
Korea, the appeal from which the Supreme Court dismissed for lack of jurisdiction. See case No.
S-14-443.
                                          CONCLUSION
        The temporary order entered by the court with regard to custody, visitation, and suspension
of child support is not a final, appealable order. Therefore, we do not reach Arana’s assigned errors.
                                                                                  APPEAL DISMISSED.




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