Bayliss v. Bayliss

Nebraska Court of Appeals · Property

Propertychild supportappellate jurisdictionmodification of dissolution decreejurisdictionappealchild supportmodification

Facts

Bayliss and Lewis' dissolution decree had previously been modified, and Bayliss later sought further modification requiring Lewis to pay child support and contribute to certain child-related expenses. The district court entered a January 10, 1997 modification order, and Lewis appealed that order on January 21, 1997. While that appeal was pending, Bayliss filed another motion to modify seeking substantially the same relief, and the district court, relying on § 42-351(2), entered a November 13, 1997 order again requiring Lewis to pay $50 per month in child support and address visitation transportation costs. The second order was entered before the appellate mandate issued in the first appeal.

Issue

Does a district court retain jurisdiction under Neb. Rev. Stat. § 42-351(2) to hear a new motion to modify and enter a permanent order on child support and related obligations while an earlier modification order on those same issues is already pending on appeal? More specifically, does the statute allow the court to adjudicate anew the same support issues that are before the appellate court?

Rule

Once an appeal is perfected, the trial court generally lacks jurisdiction over the subject matter of the litigation. Under Neb. Rev. Stat. § 42-351(2), a district court may enter orders regarding custody, visitation, or support in aid of the appeal process during a pending appeal, but it may not hear and determine anew the very issues pending on appeal or enter permanent modification orders on those same issues.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Omaha, a district court entered an order modifying a dissolution decree to require Dana Mercer to pay $200 per month in child support and half of school transportation costs. Dana filed a notice of appeal. Before any mandate issued, Noel Mercer filed a new motion asking the same court to permanently raise support to $260 and reallocate the same transportation costs, and the court granted the motion.

Is the second order within the district court's jurisdiction?

Explanation. The majority rule is that perfection of an appeal divests the trial court of jurisdiction over the subject matter on appeal. Section 42-351(2) preserves authority only for orders regarding custody, visitation, or support in aid of the appeal process, not for a new permanent adjudication of the same issues already before the appellate court. Because the second order permanently modified the same support-related issues pending on appeal, it was entered without jurisdiction.