McCaul v. McCaul

731 (2007), the handwritten assertions indicated that the offi-
cer made a traffic stop of the driver for speeding, but failed to
sufficiently indicate what caused the officer to suspect intoxi-
cation. In the present case, the arresting officer did not make
a traffic stop and failed to include sufficient factual allegations
in the Sworn Report to indicate an allowable inference that
Barnett, of the people on the scene at the time of the officer’s
arrival, was the one who had been driving the vehicle. As such,
the Sworn Report in the present case was insufficient to con-
fer jurisdiction on the Department, and we need not address
Barnett’s remaining assignments of error.
V. CONCLUSION
We find that the Sworn Report in this case was insufficient
to confer jurisdiction on the Department to revoke Barnett’s
operator’s license. We reverse the decision of the district court
and remand the matter with directions to reverse the order of
the director.
R eveRsed and Remanded with diRections.
dennis P. mccaul , aPPellant, v.
BRandie n. mccaul , aPPellee .
771 N.W.2d 222
Filed July 28, 2009. 	No. A-08-615.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the decisions
made by the lower courts.
2. 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.
3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 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.
4. Actions: Statutes. Special proceedings entail civil statutory remedies not encom-
passed in chapter 25 of the Nebraska Revised Statutes.
mcCAUL v. mcCAUL 	801
Cite as 17 Neb. App. 801
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

5. Actions: Modification of Decree. Proceedings regarding modification of a
marital dissolution, which are controlled by Neb. Rev. Stat. § 42-364 (Reissue
2008), are special proceedings. Likewise, custody determinations, which are also
controlled by § 42-364, are considered special proceedings.
6. Juvenile Courts: 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.
7. 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 less than all the issues is an interlocutory order and is
not a final order for the purpose of an appeal.
8. Judgments: Costs: Guardians Ad Litem. Pursuant to Neb. Rev. Stat. § 42-358
(Reissue 2008), guardian ad litem fees are costs. Costs are considered part of
the judgment.
Appeal from the District Court for Saunders County: maRy
c. G ilBRide, Judge. Appeal dismissed.
Christopher A. Pfanstiel, of Lewis & Pfanstiel, P.C., L.L.O.,
for appellant.
Jill R. Cunningham, of Howard F. Ach Law Office, for
appellee.
inBody, Chief Judge, and sieveRs and cassel, Judges.
cassel, Judge.
INTRODUCTION
Brandie N. mcCaul sought modification of custody of the
parties’ minor child, claiming that Dennis P. mcCaul, the child’s
father and initial custodial parent, wrongfully denied visitation.
Dennis appeals from the district court’s order placing custody
with Brandie. Because the issue of guardian ad litem (GAL)
fees was unresolved as of the date Dennis appealed, Dennis did
not appeal from a final order, and we therefore lack jurisdiction
to consider this appeal.
BACKROUND
Dennis and Brandie were previously married and are the
parents of a minor child. Pursuant to a divorce decree entered
on may 16, 2006, custody of the minor child was placed with
Dennis subject to Brandie’s reasonable rights of visitation.
802 	17 NeBRASKA APPeLLATe RePORTS

On may 31, 2007, Brandie filed a “Complaint to modify
Decree.” In an amended complaint, Brandie requested that she
receive primary custody of the minor child because Dennis
had denied visitation. After a trial on December 11, 2007, and
January 31 and April 28, 2008, the court placed permanent
custody of the minor child with Brandie.
While the proceedings were ongoing, on January 31, 2008,
the court on its own motion appointed a GAL for the minor
child to conduct an investigation. The order provided as fol-
lows regarding payment of the GAL:
The costs of the appointment shall be borne as follows.
each party shall deposit the sum of $200.00 with the
clerk of the court for Saunders County, not later than
march 1, 2008. Saunders County will pay the remainder
of the GAL fees, subject to an order in which the court
shall apportion those fees for reimbursement to Saunders
County, between the parties.
Subsequently, pursuant to a may 5, 2008, order, the dis-
trict court placed permanent custody of the minor child with
Brandie. Neither the may 5 order nor any previous order dis-
posed of the issue of GAL fees. On may 6, the GAL filed an
“Application for Attorney Fees.” On may 8, the court ordered
that Saunders County pay the GAL $1,972.50, which included
the $400 the parties had previously deposited, and further
ordered that “Saunders County shall be reimbursed by the par-
ties in an amount and manner to be determined by the [c]ourt
until paid in full.” The may 8 order also set a hearing on reim-
bursement for June 30. Dennis filed this appeal on June 4. At
the June 30 hearing, the court ordered that each party pay $500
in GAL fees.
ASSIGNmeNTS OF eRROR
Because we resolve this appeal on jurisdictional grounds, we
do not reach Dennis’ assignments of error. However, we note
that Dennis assigns, reordered and consolidated, that the dis-
trict court erred in (1) granting Brandie’s complaint to modify
the decree “prior to the conclusion of [his] case in chief” or
“granting . . . any temporary custody motion . . . after only
approximately 15 minutes of cross-examination of [Brandie]
mcCAUL v. mcCAUL 	803
Cite as 17 Neb. App. 801

by [Dennis’] counsel,” (2) failing to apply the standard appli-
cable to a consent decree, (3) granting Brandie’s first amended
complaint to modify at the conclusion of the evidence, and (4)
finding that there was a material change in circumstances.
STANDARD OF ReVIeW
[1] When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires an
appellate court to reach a conclusion independent of the deci-
sions made by the lower courts. In re Interest of Anaya, 276
Neb. 825, 758 N.W.2d 10 (2008).
ANALYSIS
[2] Brandie argues that this court does not have jurisdiction
to consider the instant appeal because Dennis appealed from an
order which failed to dispose of the issue of GAL fees. 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. Kilgore v. Nebraska Dept. of Health &
Human Servs., 277 Neb. 456, 763 N.W.2d 77 (2009). Brandie
insists that Dennis’ appeal filed on June 4, 2008, was premature
because the district court did not make a final determination
regarding the payment of GAL fees until June 30. We agree.
Although Dennis appealed from a type of order which can be
final and appealable, the specific order from which Dennis
appealed was not a final, appealable order because the issue of
GAL fees had not yet been resolved.
[3-6] Ordinarily, an order modifying a dissolution decree
to grant a permanent change of child custody would be final
and appealable as an order affecting a substantial right made
during a special proceeding. Under Neb. Rev. Stat. § 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 affect-
ing a substantial right made on summary application in an
action after a judgment is rendered. Kilgore v. Nebraska Dept.
of Health & Human Servs., supra. This appeal falls within
804 	17 NeBRASKA APPeLLATe RePORTS

the second category. Special proceedings entail civil statu-
tory remedies not encompassed in chapter 25 of the Nebraska
Revised Statutes. Platte Valley Nat. Bank v. Lasen, 273 Neb.
602, 732 N.W.2d 347 (2007). modification of child custody
does not fall within chapter 25. Proceedings regarding modi-
fication of a marital dissolution, which are controlled by Neb.
Rev. Stat. § 42-364 (Reissue 2008), are special proceedings.
Likewise, custody determinations, which are also controlled
by § 42-364, are considered special proceedings. Steven S.
v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009). 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. See id. Where child
custody is modified on a permanent basis, the order clearly
affects a substantial right.
[7] However, an order affecting a substantial right made dur-
ing a special proceeding is not a final order unless it disposes
of all issues implicated. When multiple issues are presented to
a trial court for simultaneous disposition in the same proceed-
ing and the court decides some of the issues, while reserving
other issues for later determination, the court’s determination
of less than all the issues is an interlocutory order and is not a
final order for the purpose of an appeal. Wagner v. Wagner, 275
Neb. 693, 749 N.W.2d 137 (2008). See, Huffman v. Huffman,
236 Neb. 101, 459 N.W.2d 215 (1990) (divorce decree resolv-
ing issue of permanent custody but reserving issue of visitation
is not final order); Johnson v. Johnson, 15 Neb. App. 292, 726
N.W.2d 194 (2006) (order modifying child custody but failing
to resolve closely related issue of child support is not final
order). Although this principle has been applied most often in
the context of a special proceeding, the same principle is also
generally true for other orders which are normally final and
appealable. See, Mumin v. Dees, 266 Neb. 201, 663 N.W.2d
125 (2003) (order which affects substantial right in action
which determines action and prevents judgment); Clarke v.
Nebraska Nat. Bank, 49 Neb. 800, 69 N.W. 104 (1896) (order
which affects substantial right made on summary application in
action after judgment is rendered).
mcCAUL v. mcCAUL 	805
Cite as 17 Neb. App. 801

[8] The order from which Dennis appeals is not a final,
appealable order because it failed to resolve the issue of GAL
fees, which, where they are implicated, are costs that must
be determined prior to the entry of a final order. Pursuant
to Neb. Rev. Stat. § 42-358 (Reissue 2008), GAL fees are
“costs.” Costs are considered part of the judgment. Smeal Fire
Apparatus Co. v. Kreikemeier, 271 Neb. 616, 715 N.W.2d 134
(2006). When a trial court has failed to resolve the issue of
costs where it has been raised, there can be no final, appeal-
able order. See State ex rel. Fick v. Miller, 252 Neb. 164, 560
N.W.2d 793 (1997). most often, this issue arises in the context
of attorney fees, which are usually also considered as costs.
In State ex rel. Fick v. Miller, the Nebraska Supreme Court
determined that a district court’s order which reserved the
issue of attorney fees for a supplementary proceeding was not
a final, appealable order. Similarly, in In re Application of SID
No. 384, 256 Neb. 299, 303, 589 N.W.2d 542, 545 (1999), the
Nebraska Supreme Court determined that the district court’s
failure to rule on a motion for attorney fees “left a portion of
the judgment unresolved” and was therefore not a final, appeal-
able order. Thus, the remaining question is whether the issue of
GAL fees was implicated.
In the instant case, we conclude that the court’s January 31,
2008, order raised the issue of GAL fees and required the
court to take further action to resolve the issue. The January 31
order stated that the county would pay the GAL fees but that
the court would later determine the parties’ obligation to
reimburse the county. The plain language of § 42-358 makes
it clear that, in light of this order, the district court could
not fully resolve the issue of GAL fees without entering a
further order that determined the obligations of the parties.
Section 42-358(1) provides in part as follows regarding the
trial court’s duty to fix and apportion GAL fees: “The court
shall by order fix the fee, including disbursements, for such
attorney, which amount shall be taxed as costs and paid by the
parties as ordered. If the court finds that the party responsible
is indigent, the court may order the county to pay the costs.”
Thus, the court was required to determine the total amount of
the fee to be taxed to each party or make a finding that the
806 	17 NeBRASKA APPeLLATe RePORTS

parties could not afford to pay the fee. In the instant case, the
district court did not complete this process until June 30, when
it fixed the fee that each party would pay. Thus, there was no
final, appealable order until June 30, which was after Dennis
filed his appeal. Because the may 5 order from which Dennis
appeals was not a final, appealable order, we lack jurisdiction
over the instant appeal.
CONCLUSION
Because the order from which Dennis attempted to appeal
was not a final, appealable order, we lack jurisdiction to con-
sider the merits of this appeal.
aPPeal dismissed.
BaRRy a. donscheski , aPPellant and cRoss -aPPellee ,
v. sheRRy a. donscheski , now known as
sheRRy a. noRRis , aPPellee
and cRoss -aPPellant.
771 N.W.2d 213
Filed July 28, 2009. 	No. A-08-1131.
1. Child Custody: Appeal and Error. Child custody determinations are initially
entrusted to the discretion of the trial court, and although reviewed de novo on
the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Final Orders: Words and Phrases. An order is final when no further action of
the court is required to dispose of the pending cause; however, if the cause is
retained for further action, the order is interlocutory.
3. Child Custody. Ordinarily, custody of a minor child will not be modified unless
there has been a material change in circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such action.
4. Modification of Decree: Child Custody: Proof. The party seeking modification
of child custody bears the burden of showing a change in circumstances.
5. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
6. Child Custody. When parents are unable or unwilling to execute parenting duties
jointly, the result is that one or the other must be given primary responsibility for
the child’s care.
DONSCHeSKI v. DONSCHeSKI 	807
Cite as 17 Neb. App. 807