Steven S. v. Mary S.

court did not abuse its discretion when devising the parenting
plan and by granting custody of the parties’ child to Kamal.
Nor did the court abuse its discretion by restricting either party
from taking the child out of the country without the written
consent from the other parent. We therefore affirm the district
court’s order.
A ffirmed.
Steven S., Appellee , v.
mAry S., AppellAnt.
760 N.W.2d 28
Filed January 30, 2009. 	No. S-08-622.
1. Judgments: 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. 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. 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 tribunal from
which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may
be reviewed on appeal are (1) an order which affects a substantial right and
which 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 judgment
is rendered.
5. Actions: Statutes. Special proceedings include every special civil statutory
remedy not encompassed in civil procedure statutes which is not in itself an
action.
6. Actions: Statutes: Words and Phrases. An action is any proceeding in a court
by which a party prosecutes another for enforcement, protection, or determina-
tion of a right or the redress or prevention of a wrong involving and requiring the
pleadings, process, and procedure provided by the statute and ending in a final
judgment. Every other legal proceeding by which a remedy is sought by original
application to a court is a special proceeding.
7. Actions: Modification of Decree. Proceedings regarding modification of a mari-
tal dissolution, which are controlled by Neb. Rev. Stat. § 42-364 (Reissue 2008),
are special proceedings.
124 	277 NEBRASKA REPoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

8. Final Orders: Words and Phrases: Appeal and Error. For purposes of deter-
mining whether an order from which an appeal is taken affects a substantial
right, a “substantial right” is an essential legal right, not a mere technical right. A
substantial right is affected if the order affects the subject matter of the litigation,
such as diminishing a claim or defense that was available to an appellant prior to
the order from which an appeal is taken.
9. Pretrial Procedure: Final Orders: Appeal and Error. Discovery orders, such
as an order for a mental examination, are not generally subject to interlocutory
appeal, because the underlying litigation is ongoing and the discovery order is not
considered final.
Appeal from the District Court for Kearney County: Stephen
r. illingworth, Judge. Appeal dismissed.
Grant A. Forsberg, of Forsberg & Jolly Law, P.C., L.L.o.,
for appellant.
Susan K. Alexander for appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	StephAn,
mccormAck , and miller-lermAn, JJ.
gerrArd, J.
Steven S. and Mary S. are the parents of twin girls. After
their divorce, the court awarded the parties joint legal custody
of the children, but awarded primary physical custody to Steven
subject to Mary’s rights of visitation. Each party now accuses
the other of sexually abusing the children, and each party filed
petitions and motions seeking custody and other relief. But fol-
lowing an investigation by the Nebraska State Patrol, Mary was
arrested for sexual assault on a child.
After a hearing, the district court entered an order that,
among other things, awarded temporary legal and physical
custody to Steven, ordered Mary to have no further con-
tact with her minor children until further order of the court,
and ordered Mary to submit to an extensive psychological
evaluation. Mary appeals that order. The primary issue pre-
sented on appeal is whether the order is final and appealable.
We conclude that it is not, and dismiss this appeal for lack
of jurisdiction.
STEvEN S. v. MARy S. 	125
Cite as 277 Neb. 124

FACTS
Steven and Mary were married in 2004. They are the par-
ents of twin daughters, born in August 2004. Steven and Mary
separated and divorced in 2006. The court awarded joint legal
custody of the children, with primary physical custody awarded
to Steven subject to Mary’s rights of visitation.
Both parties accuse the other of sexually abusing the chil-
dren. Throughout the dissolution proceedings, Mary took the
children to various medical doctors in an attempt to show that
Steven was physically and sexually abusing them. As a result,
the court ordered Mary not to take the children to any health
care provider absent a true medical emergency.
In 2007, the girls returned from a visit with Mary and were
tearful and “clingy.” Steven was concerned and took them
to a child abuse counseling center. Shortly after that visit,
Mary reported to law enforcement on three occasions that
Steven was physically and sexually abusing the children. The
Nebraska State Patrol investigated and determined that Mary’s
accusations of abuse were unfounded. Based on the Nebraska
State Patrol’s investigation and allegations made by the girls
in therapy sessions, Mary was arrested for sexual assault on
a child.
Before her arrest, on April 18, 2008, Mary filed an appli-
cation to modify the decree of dissolution. In her applica-
tion, Mary alleged that Steven had engaged in emotional and
physical abuse of the children and she requested sole legal and
physical custody of the children. on the same day, Mary also
filed an application for an ex parte order awarding her tempo-
rary custody. The district court granted Mary’s application and
awarded temporary custody of the children to Mary and sus-
pended Steven’s visitation until further order of the court.
on April 22, 2008, Steven filed a motion to set aside the
ex parte order, claiming that Mary had made false allegations
against him as a means of gaining custody. Steven also alleged
that after the court had entered the ex parte order award-
ing custody to Mary, the Nebraska State Patrol had arrested
Mary for sexual assault on a child and placed the children
in the custody of the State. The court vacated its ex parte
126 	277 NEBRASKA REPoRTS

order granting Mary temporary custody, and the children were
returned to Steven.
on April 28, 2008, Steven moved for an order (1) tempo-
rarily suspending Mary’s visitation rights, (2) directing both
parties to submit to evaluations by a court-appointed psychol-
ogist, (3) directing Mary to submit to an extensive psycho-
logical evaluation by a court-appointed psychologist, and (4)
awarding attorney fees. The following day, Steven also filed an
answer and cross-application to Mary’s application to modify
the decree, arguing that it was in the best interests of the chil-
dren to suspend Mary’s visitation rights and place the children
in the sole legal and physical custody of Steven. The answer
and cross-application also requested that Mary be ordered to
submit to a psychological evaluation and that a custody evalu-
ation take place. The court held a hearing on the “temporary
custody motion to suspend visitation and to submit to an evalu-
ation, and motion to appoint a guardian ad litem.” After the
hearing, Mary filed a motion for temporary custody.
In an order dated May 16, 2008, the district court over-
ruled Mary’s application to modify temporary custody and
placed temporary legal and physical custody with Steven. The
court also sustained Steven’s motion to suspend visitation
and ordered Mary to have no further contact with the minor
children until further order of the court. The court declined to
appoint a guardian ad litem. The district court also sustained
Steven’s motion to reappoint a court-appointed psychologist to
further evaluate the parties and submit a recommendation on
permanent custody. Finally, the court ordered Mary to submit
to an extensive psychological evaluation to determine whether
she suffers from any psychiatric disorders including, but not
limited to, “Munchausen Syndrome by Proxy.” Mary appeals
the May 16 order.
ASSIGNMENTS oF ERRoR
Mary assigns, restated, that the district court erred in (1)
admitting certain exhibits, (2) awarding Steven sole legal and
physical custody of the parties’ minor children and ruling that
Mary shall have no further contact with the minor children,
(3) determining that Mary must submit to a psychological
STEvEN S. v. MARy S. 	127
Cite as 277 Neb. 124

evaluation by the court-appointed psychologist, and (4) deter-
mining that Mary must submit to and partially fund a child
custody evaluation by the court-appointed psychologist.
STANDARD oF REvIEW
[1] A jurisdictional question which does not involve a fac-
tual 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.1
ANALySIS
[2-4] 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.2 For an appellate court to
acquire jurisdiction of an appeal, there must be a final order
entered by the tribunal from which the appeal is taken.3 The
three types of final orders which may be reviewed on appeal
are (1) an order which affects a substantial right and which
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 judgment is rendered.4 In this
case, the order on appeal did not determine the action and pre-
vent a judgment, nor was it made on summary application in an
action after judgment was rendered. Thus, we consider whether
the order was made during a special proceeding and affected a
substantial right.5
[5,6] We have construed the phrase “special proceedings”
to include every special civil statutory remedy not encom-
passed in civil procedure statutes which is not in itself an
action.6 An action is any proceeding in a court by which a
1 Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008).
2 In re Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500 (2005).
3 In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).
4 See, In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312
(2006); Neb. Rev. Stat. § 25-1902 (Reissue 2008).
5 See In re Guardianship of Sophia M., supra note 4.
6 Id.
128 	277 NEBRASKA REPoRTS

party prosecutes another for enforcement, protection, or deter-
mination of a right or the redress or prevention of a wrong
involving and requiring the pleadings, process, and procedure
provided by the statute and ending in a final judgment.7 Every
other legal proceeding by which a remedy is sought by origi-
nal application to a court is a special proceeding.
[7] This appeal arises out of proceedings regarding the
modification of a marital dissolution. As mentioned above,
we have construed the phrase “special proceedings” to mean
civil statutory remedies not encompassed in chapter 25 of the
Nebraska Revised Statutes.8 Under this definition, proceed-
ings 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.9
[8] Having determined that this was a special proceeding,
we next consider whether a substantial right was affected. A
substantial right is an essential legal right, not a mere technical
right.10 A substantial right is affected if the order affects the
subject matter of the litigation, such as diminishing a claim
or defense that was available to an appellant prior to the order
from which an appeal is taken.11
Relying on our recent holding in In re Guardianship of
Sophia M., Steven argues that this court lacks jurisdiction to
hear this appeal, because the district court’s order did not affect
a substantial right. Mary, on the other hand, argues that this
case differs from In re Guardianship of Sophia M., because in
7 Id.
8 See, In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000); State ex
rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), overruled in
part on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780
(1999).
9 State ex rel. Reitz v. Ringer, supra note 8.
10 See, In re Guardianship of Sophia M., supra note 4; In re Estate of Peters,
supra note 8.
11 See, In re Guardianship of Sophia M., supra note 4; In re Guardianship &
Conservatorship of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006).
STEvEN S. v. MARy S. 	129
Cite as 277 Neb. 124

that case, visitation rights were temporarily suspended pend-
ing permanent proceedings. Mary asserts that the language of
the order in this case permanently suspends her visitation and
custody rights.
In In re Guardianship of Sophia M., the grandparents peti-
tioned the district court to be appointed coguardians of their
granddaughter. The county court granted the grandparents’
request for a mental examination of the mother and denied the
mother’s request for immediate visitation. We dismissed the
mother’s appeal for lack of jurisdiction, concluding that nei-
ther the mental examination nor the temporary visitation order
affected a substantial right. As in In re Guardianship of Sophia
M., the order in this case is not final and appealable, because it
does not affect a substantial right.
We first consider the district court’s determination regarding
custody and visitation. Although this case is a modification
proceeding, the order, in part, concerned visitation, custody,
and the relationship between Mary and her two daughters.
Thus, we look to juvenile cases, in part, for guidance in deter-
mining if the denial of visitation and custody in this case
affects a substantial right.12 In regard to the issue of whether
special proceedings involving juvenile matters affect substan-
tial rights, we stated in In re Interest of Borius H. et al.13:
“‘[T]he question . . . 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.’”
Here, the May 16, 2008, order suspends visitation and makes
a temporary custody determination. The order states:
1. [Mary’s] Application to Modify Temporary Custody
is overruled. Temporary legal and physical custody is
placed with [Steven].
12 See In re Guardianship of Sophia M., supra note 4.
13 In re Interest of Borius H. et al., 251 Neb. 397, 401, 558 N.W.2d 31, 34
(1997), quoting In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780
(1991).
130 	277 NEBRASKA REPoRTS

2. [Steven’s] Motion to Suspend visitation is Sustained.
[Mary] shall have no further contact with the minor chil-
dren until further order of the Court.
. . . .
4. [Steven’s] Motion to Re-appoint [the court-appointed
psychologist] to further evaluate the parties and submit a
recommendation on permanent custody is Sustained.
The plain language of the order, when taken in its proper
context, only temporarily suspends Mary’s rights to visitation
and custody. In particular, the district court, in paragraph 4,
sustained a motion to reappoint the court-appointed psychol-
ogist to further evaluate Mary and to “submit a recommenda-
tion on permanent custody.” (Emphasis supplied.) Because
Mary’s relationship with the children will be disturbed for only
a brief time period and the order was not a permanent disposi-
tion, we conclude that a substantial right was not affected.
In fact, to the extent that Mary’s rights to seek custody and
visitation were affected, that effect was magnified when Mary
sought to appeal, thereby keeping the temporary order in place
longer than it might have been otherwise. Any substantial rights
placed at issue by a temporary custody order are more affected
when an appeal is attempted. The goal of quickly resolving
such disputes would be hindered, not assisted, by permitting
interlocutory appeals.
[9] Nor does the ordered psychological examination make
the court’s order final and appealable. Discovery orders, such
as the order for a mental examination here, are not gener-
ally subject to interlocutory appeal, because the underlying
litigation is ongoing and the discovery order is not considered
final.14 However, as we discussed in In re Guardianship of
Sophia M., if the discovery order affects a substantial right and
was made in a special proceeding, it is appealable.15
As in In re Guardianship of Sophia M., the district court’s
order requiring Mary to submit to a mental examination does
not diminish Mary’s ability to contest any unfavorable results
of the examination or defend her capacity to have custody
14 See Gernstein v. Lake, 259 Neb. 479, 610 N.W.2d 714 (2000).
15 In re Guardianship of Sophia M., supra note 4.
STEvEN S. v. MARy S. 	131
Cite as 277 Neb. 124

in the future modification proceedings. The remainder of the
modification proceedings and a possible appeal of the order
after final judgment provides Mary all necessary remedies.
Although a mental examination, once ordered and performed,
cannot be undone, we are not convinced that any harm caused
by waiting to appeal the order until after final judgment
is sufficient to warrant an interlocutory appeal. In contrast,
allowing an interlocutory appeal in this case significantly
delays the proceedings, and the ultimate resolution of the
children’s custody.
We note that the Nebraska discovery rules offer protection
in the form of standards that must be met before an order for
a mental examination may be issued.16 Section 6-335 requires
that to obtain an order for a physical or mental examination,
the physical or mental condition of a party must be in contro-
versy, and the moving party must show good cause for ordering
the examination.17 And, if warranted, an egregious error made
by the court in ordering a mental examination could be chal-
lenged by the aggrieved party in a mandamus action.18 Thus,
we conclude that an order for a physical or mental examina-
tion pursuant to § 6-335 does not affect a substantial right and,
therefore, is not a final, appealable order.19
Because the order on appeal is not a final, appealable order,
we lack jurisdiction to address Mary’s assignments of error,
and we dismiss her appeal.
CoNCLUSIoN
For the foregoing reasons, we conclude that the district
court’s order was not final and appealable. When an appel-
late court is without jurisdiction to act, the appeal must be
dismissed. We, therefore, dismiss this appeal for lack of
jurisdiction.
A ppeAl diSmiSSed.
16 See Neb. Ct. R. Disc. § 6-335.
17 Id.
18 See State ex rel. Acme Rug Cleaner v. Likes, 256 Neb. 34, 588 N.W.2d 783
(1999).
19 In re Guardianship of Sophia M., supra note 4.
132 	277 NEBRASKA REPoRTS