Bramble v. Bramble ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/02/2019 01:06 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    BRAMBLE v. BRAMBLE
    Cite as 
    303 Neb. 380
    James D. Bramble,        appellee, v.
    Lori A. Bramble,      appellant.
    ___ N.W.2d ___
    Filed June 21, 2019.    No. S-18-682.
    1. Judgments: Justiciable Issues. Justiciability issues that do not involve
    a factual dispute present a question of law.
    2. 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.
    3. Justiciable Issues. A justiciable issue requires a present, substantial
    controversy between parties having adverse legal interests susceptible
    to immediate resolution and capable of present judicial enforcement.
    4. 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.
    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. As a general rule, a moot case is subject to sum-
    mary dismissal.
    7. Contempt: Moot Question: Appeal and Error. An appeal challenging
    a finding of civil contempt is rendered moot once the contemnor volun-
    tarily purges the contempt.
    8. Contempt: Appeal and Error. In a civil contempt proceeding, the con-
    temnor has a choice once he or she is found to be in willful contempt
    of court and a sanction and purge plan is put in place: The contemnor
    can either seek a stay of the sanction pending an appeal or comply
    with the purge plan and thereby purge the finding of contempt and end
    the matter.
    9. Moot Question: Appeal and Error. An appellate court may choose to
    review an otherwise moot case under the public interest exception if it
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    BRAMBLE v. BRAMBLE
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    303 Neb. 380
    involves a matter affecting the public interest or when other rights or
    liabilities may be affected by its determination.
    10. Moot Question: Words and Phrases. The public interest exception to
    the mootness doctrine requires consideration of the public or private
    nature of the question presented, the desirability of an authoritative
    adjudication for future guidance of public officials, and the likelihood of
    future recurrence of the same or a similar problem.
    11. Moot Question: Appeal and Error. Application of the public interest
    exception is inappropriate where the issues presented on appeal do not
    inherently evade appellate review.
    Appeal from the District Court for Douglas County: W.
    Russell Bowie III, Judge. Appeal dismissed.
    C.G. (Dooley) Jolly and Travis M. Jacott, of Adams &
    Sullivan, P.C., L.L.O., for appellant.
    Elizabeth Stuht Borchers and Steven J. Riekes, of Marks,
    Clare & Richards, L.L.C., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Stacy, J.
    This appeal stems from civil contempt proceedings in a dis-
    solution action. The primary question presented is whether a
    contemnor’s full compliance with a purge plan renders moot a
    subsequent appeal of the finding of contempt. We conclude it
    does, and we dismiss the appeal.
    BACKGROUND
    In January 2016, after a trial, the district court for Douglas
    County entered a decree dissolving the marriage of James D.
    Bramble and Lori A. Bramble. Both parties moved to alter or
    amend the decree, and the court thereafter entered an amended
    decree on February 22, 2016.
    As relevant to the issues on appeal, the amended decree
    awarded the parties joint legal custody of their two minor
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    BRAMBLE v. BRAMBLE
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    children, and Lori was awarded primary physical custody.
    Regarding the marital home, the amended decree provided:
    The real estate is awarded to [James] as is. The parties
    have stipulated that the value of the house is $169,000.
    There is $47,500 of marital equity. [James] shall refinance
    the house within 60 days of the entry of the Amended
    Decree to remove [Lori]’s name from the mortgage, and
    pay [Lori] her share of the equity of $23,750.00. [Lori]
    shall have until February 29, 2016, to vacate the resi-
    dence. [Lori] shall leave the house in good condition,
    and not remove any fixtures or major appliances (except
    that [Lori] may remove either the clothes washer or the
    clothes dryer), on her departure. [James] has been paying
    the mortgage and all expenses since moving out of the
    marital home, and shall continue to do so until after he
    takes possession.
    [Lori] shall execute a Quitclaim Deed to [James]
    releasing her interest in the marital residence, whether
    said interest is marital, legal, equitable, contractual or
    otherwise, to be held by her attorney, who shall release
    the deed to the title company or lending institution to be
    held in escrow pending the refinancing and payment of
    the marital equity.
    Contempt Proceedings
    On March 14, 2016, James filed an application for an order
    to show cause. As relevant to this appeal, James alleged Lori
    improperly removed several fixtures and items of personal
    property from the residence. A show cause order was issued,
    and Lori entered a voluntary appearance.
    After a continuance to permit mediation, the contempt appli-
    cation was taken up on October 24, 2016, with both parties
    represented by counsel. Evidence was adduced, and the mat-
    ter was continued to January 10, 2017, so additional evidence
    could be offered. On January 13, the court entered an order
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    BRAMBLE v. BRAMBLE
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    303 Neb. 380
    finding that Lori had willfully violated the provisions of the
    amended decree in the following respects:
    [U]pon her departure, [Lori] removed both the clothes
    washer and dryer, and replaced the dryer with another
    unit. Further [Lori] admits to removing the ceiling fans,
    the dishwasher, range, refrigerator and microwave upon
    her departure, a direct violation of the Amended Decree,
    and [Lori] is in [willful] contumacious contempt of
    this provision.
    The January 13 order established a purge plan, but did not
    impose a sanction for the contempt. The pertinent portions of
    the order provided:
    IT IS THEREFORE ORDERED that [Lori] is in [will-
    ful] contempt of court for violation [of] paragraph 9(f) of
    the Amended Decree, and shall appear in Douglas County
    District Court #504 . . . on Monday, March 13, 2017, at
    10:30 a.m. for sentencing.
    IT IS FURTHER ORDERED that [Lori] may purge
    herself of contempt by paying the sum of $3,573.00 to
    [James] no later than March 10, 2017.
    IT IS FURTHER ORDERED that [Lori] shall pay
    to the Clerk of the District Court of Douglas County,
    Nebraska, the sum of $1,500.00 as an . . . attorney’s fee
    for [James’] attorney, no later than March 10, 2017.
    IT IS FURTHER ORDERED that the parties shall
    inform the court by the close of business March 10,
    2017, whether the sentencing hearing is necessary so that
    the Douglas County Sheriff’s Office can allocate their
    resources.
    IT IS FURTHER ORDERED that any requested relief
    not specifically granted is denied.
    Lori filed a timely motion to alter or amend, arguing the
    order was “not supported by the law or the evidence adduced
    at trial.” She did not object to the procedure ordered by the
    court or the imposition of a purge plan without a sanction.
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    BRAMBLE v. BRAMBLE
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    The court overruled the motion to alter or amend, and Lori
    timely appealed.
    First A ppeal
    On appeal, Lori argued the district court erred by finding
    her in contempt, by imposing a purge plan, and by awarding
    attorney fees to James. James cross-appealed, assigning the
    district court erred in not letting him reopen the evidence in
    the dissolution trial.
    In a memorandum opinion issued April 3, 2018,1 the
    Nebraska Court of Appeals determined Lori had not appealed
    from a final order and it dismissed the appeal. The opinion
    noted that an order of contempt in a postjudgment proceeding
    to enforce a previous final judgment is a final order,2 but that
    “the law in Nebraska has long been that the finding of con-
    tempt alone, without an order of sanction is not appealable.”3
    Because the district court’s January 13, 2017, order did not
    impose a sanction, the Court of Appeals concluded Lori had
    not appealed from a final, appealable order. The opinion also
    sympathized with Lori’s predicament:
    In reaching this result, we are cognizant of the dif-
    ficult position in which Lori is placed. When the district
    court chooses to in essence impose a purge plan without a
    sanction, [Lori’s] choice is to either (1) follow the direc-
    tions of the court to avoid sentencing, even though she
    believes the district court erred in its finding of contempt;
    or (2) choose not to abide by the court’s directives and
    risk a heavier sanction once sentence is imposed. Once
    1
    Bramble v. Bramble, No. A-17-264, 
    2018 WL 1614352
    (Neb. App. Apr. 3,
    2018) (selected for posting to court website).
    2
    See 
    id., citing Smeal
    Fire Apparatus Co. v. Kreikemeier, 
    279 Neb. 661
    ,
    
    782 N.W.2d 848
    (2010), disapproved on other grounds, Hossaini v.
    Vaelizadeh, 
    283 Neb. 369
    , 
    808 N.W.2d 867
    (2012).
    3
    
    Id. at *3.
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    the sanction is imposed, she could then seek a stay of its
    imposition pending appeal. [Citation omitted.] While we
    cannot say it was error for the district court to give Lori
    an opportunity to comply with its order prior to imposing
    a sanction with a formalized purge plan, the court’s order
    does place Lori in a difficult situation. In any event, her
    efforts to appeal immediately are premature and we have
    no alternative other than to dismiss her appeal for lack
    of jurisdiction.4
    Regarding James’ cross-appeal, the Court of Appeals found the
    record on appeal was insufficient to support the assignment
    of error and affirmed the district court’s order. The Court of
    Appeals’ mandate issued May 9, 2018.
    Proceedings on R emand
    On May 18, 2018, the district court ordered Lori to appear
    on June 11 “for sentencing on a previous finding of . . . con-
    tempt.” At the June 11 hearing, James’ attorney asked the court
    to reopen the record for the purpose of including additional
    attorney fees as part of the purge plan.
    In an order entered June 11, 2018, the district court reiter-
    ated its prior finding of contempt and sentenced Lori to 10
    days in jail, ordering her to self-surrender no later than 8 a.m.
    on Friday, June 15. The order provided that Lori could purge
    herself of contempt by paying to the clerk of the Douglas
    County District Court the sum of $5,073 no later than close
    of business on June 14. The order further provided that if Lori
    failed to pay the purge amount and failed to self-surrender, a
    warrant would be issued for her arrest. Finally, the order over-
    ruled James’ request to reopen the record to submit additional
    evidence of attorney fees.
    Two days later, on June 13, 2018, Lori filed what she cap-
    tioned as a “Notice of Compliance With Purge Order; and
    4
    
    Id. at *4.
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    Application for Order.” In this filing, Lori stated that at the
    time of her first appeal, she deposited a $5,000 supersedeas
    bond with the clerk of the district court and she represented
    that sum was still on deposit with the clerk. Lori also alleged
    that on June 12, she paid an additional $73 into the clerk of
    the district court. Lori asked that the funds deposited with the
    clerk, totaling $5,073, be used to purge her contempt.
    The next day, on June 14, 2018, the district court entered
    a stipulated order for distribution directing the clerk of the
    district court to “release to [James] the sum of $5,073” and
    to “record this transaction in complete satisfaction” of the
    purge order.
    Second A ppeal
    On July 10, 2018, Lori filed a notice of appeal, purporting
    to appeal from the contempt orders of January 13, 2017, and
    June 11, 2018. After Lori filed her opening brief, James moved
    to summarily dismiss the appeal, arguing it was rendered moot
    when Lori satisfied the conditions of the contempt order and
    purged the finding of contempt. Lori opposed summary dis-
    missal, arguing alternatively that (1) the appeal still presents
    legally cognizable interests or (2) the public interest exception
    to the mootness doctrine should apply.
    The Court of Appeals overruled the motion for summary
    dismissal and directed the parties to address the mootness issue
    in the remaining briefing. After briefing was complete, we
    moved the case to our docket.5
    ASSIGNMENTS OF ERROR
    Lori assigns, slightly restated, that the district court erred
    in (1) finding her in contempt, (2) making insufficient factual
    findings to support a finding of willful contempt, (3) finding
    her in contempt of provisions in the amended decree that were
    5
    See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
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    vague, (4) awarding attorney fees to James, and (5) not award-
    ing attorney fees to Lori.
    STANDARD OF REVIEW
    [1] Justiciability issues that do not involve a factual dispute
    present a question of law.6
    ANALYSIS
    Before we address James’ argument that this appeal of
    a civil contempt order is moot, we discuss the nature of
    civil contempt proceedings generally. We have explained that
    “[c]ivil contempt proceedings are ‘“instituted to preserve and
    enforce the rights of private parties to the suit and to compel
    obedience to orders and decrees made to enforce the rights
    and to administer the remedies to which the court has found
    them to be entitled . . . .”’”7 Civil contempt proceedings are
    often described as “remedial and coercive in their nature.”8 As
    such, courts in civil contempt proceedings have broad remedial
    power, including the power to order “compensatory relief that
    is limited to a complainant’s actual losses sustained because
    of a contemnor’s willful contempt”9 and the power to order
    equitable relief.10
    Historically, Nebraska did not permit appeals to be taken
    from civil contempt orders imposing only civil, coercive sanc-
    tions.11 But in the 2010 case of Smeal Fire Apparatus Co. v.
    6
    Blakely v. Lancaster County, 
    284 Neb. 659
    , 
    825 N.W.2d 149
    (2012).
    7
    Smeal Fire Apparatus Co., supra note 
    2, 279 Neb. at 672
    , 782 N.W.2d at
    860 (emphasis omitted).
    8
    
    Id. (emphasis omitted).
     9
    
    Id. at 676,
    782 N.W.2d at 862.
    10
    Smeal Fire Apparatus Co., supra note 2.
    11
    See, e.g., Dunning v. Tallman, 
    244 Neb. 1
    , 
    504 N.W.2d 85
    (1993),
    overruled, Smeal Fire Apparatus Co., supra note 2; State ex rel. Kandt
    v. North Platte Baptist Church, 
    225 Neb. 657
    , 
    407 N.W.2d 747
    (1987),
    overruled, Smeal Fire Apparatus Co., supra note 2.
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    Kreikemeier,12 we held that “a party may appeal from a final
    order of contempt, regardless whether the court’s sanction is
    labeled criminal or civil.”
    With this framework in mind, we address James’ argument
    that this appeal is moot because Lori has purged herself of the
    civil contempt finding she now seeks to challenge.
    A ppeal Is Moot
    [2,3] Although mootness does not prevent appellate jurisdic-
    tion, it is a justiciability doctrine that can prevent courts from
    exercising jurisdiction.13 A justiciable issue requires a present,
    substantial controversy between parties having adverse legal
    interests susceptible to immediate resolution and capable of
    present judicial enforcement.14
    [4-6] Mootness refers to events occurring after the filing of a
    suit which eradicate the requisite personal interest in the reso-
    lution of the dispute that existed at the beginning of the litiga-
    tion.15 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.16 As a general
    rule, a moot case is subject to summary dismissal.17
    James argues that because Lori voluntary and fully com-
    plied with the purge order, she has purged herself of contempt
    and this appeal is moot. We considered a similar argument
    in McFarland v. State.18 In that case, a county court judge
    12
    Smeal Fire Apparatus Co., supra note 
    2, 279 Neb. at 707-08
    , 782 N.W.2d
    at 882.
    13
    Blakely, supra note 6.
    14
    Professional Firefighters Assn. v. City of Omaha, 
    282 Neb. 200
    , 
    803 N.W.2d 17
    (2011).
    15
    Blakely, supra note 6.
    16
    
    Id. 17 Putnam
    v. Fortenberry, 
    256 Neb. 266
    , 
    589 N.W.2d 838
    (1999).
    18
    McFarland v. State, 
    165 Neb. 487
    , 
    86 N.W.2d 182
    (1957).
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    (respondent) refused to sign an order fixing a time, date, and
    place for a probate hearing, believing such an order already
    had been issued. A mandamus action was filed against the
    respondent in district court, and a peremptory writ of man-
    damus issued. When the respondent did not comply with
    the peremptory writ, an alias peremptory writ of mandamus
    issued, commanding the respondent to comply with the previ-
    ous writ by signing the order setting a time, date, and place
    for the probate hearing. When the respondent again refused,
    he was found in contempt and ordered committed to jail until
    he purged himself of contempt by signing the order. The
    respondent then complied with the purge provision and filed
    a notice of such compliance with the district court. The dis-
    trict court thereafter noted the respondent’s compliance with
    the alias writ of mandamus and suspended execution of the
    jail sentence. The respondent appealed to challenge the prior
    commitment order, and a question was raised about whether
    the appeal was moot. We found it was, and dismissed the
    appeal, reasoning:
    [I]t is self evident that no issue remains to be decided
    here. Nothing could be gained by our holding that the
    commitment was improper for respondent is no longer
    in jail. He has not been found guilty of criminal con-
    tempt, in which case he would be entitled to have his
    conviction reviewed. Here the purpose of the order to
    jail was to coerce respondent to comply with the manda-
    mus order of the court. Whether or not [the mandamus]
    order is correct can properly be determined in an appeal
    taken therefrom.19
    [7] Although McFarland was decided before Smeal Fire
    Apparatus Co. recognized the right to appeal a civil contempt
    order, the mootness analysis in McFarland is consistent with
    19
    
    Id. at 493-94,
    86 N.W.2d at 186.
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    that of other courts to have considered the issue.20 We agree
    with those state21 and federal22 courts which hold that an
    appeal challenging a finding of civil contempt is rendered
    moot once the contemnor voluntarily purges the contempt.
    Such appeals do not present a justiciable issue because, given
    the coercive nature of civil contempt proceedings, once a
    finding of contempt has been fully purged and obedience with
    the order has been accomplished, there is no remaining con-
    troversy between the parties and no effective relief that can
    be afforded on appeal.
    20
    See Annot., 
    33 A.L.R. 3d 448
    § 26 (1970 & Supp. 2019) (and cases cited
    therein).
    21
    See, e.g., Belt v. Cabinet for Families, 
    520 S.W.3d 406
    (Ky. App. 2017)
    (appeal of contempt proceedings arising out of failure to pay child
    support rendered moot when contemnor paid full purge amount); Union
    Hill Homes Ass’n v. RET Development, 
    83 S.W.3d 87
    (Mo. App. 2002)
    (appeal of contempt order rendered moot when contemnor fully complied
    with purge order and thus purged itself of contempt); Central Emergency
    Med. v. State, 
    332 Ark. 592
    , 
    966 S.W.2d 257
    (1998) (appeal of contempt
    order moot where contemnor purged itself of contempt by paying fine
    imposed); Yeager v. Yeager, 
    622 S.W.2d 339
    (Mo. App. 1981) (husband’s
    appeal of contempt order in dissolution action rendered moot when he paid
    amounts due and purged himself of contempt); Herring v. Herring, 
    236 Ga. 43
    , 
    222 S.E.2d 331
    (1976) (civil contempt appeal rendered moot when
    contemnor paid entire purge amount); Clement v. Clement, 
    295 Minn. 569
    ,
    
    204 N.W.2d 819
    (1973); Reap’s Appeal, 
    88 Pa. Super. 147
    (1926) (civil
    contemnor has choice to either appeal finding of contempt or purge it by
    voluntarily paying fine and thus ending matter).
    22
    See, e.g., Marshall v. Whittaker Corp., Berwick Forge, etc., 
    610 F.2d 1141
         (3d Cir. 1979) (appeal from civil contempt is moot once civil contempt has
    been purged); Securities and Exchange Commission v. Sloan, 
    535 F.2d 679
         (2d Cir. 1976) (appeal from order of contempt is moot where contemnor
    purges himself of contempt and no live controversy remains); Matter of
    Berry, 
    521 F.2d 179
    (10th Cir. 1975) (where contemnor has complied
    and contempt has been purged, appeal of contempt order is moot); United
    States v. Watson Chapel School District No. 24, 
    446 F.2d 933
    (8th Cir.
    1971) (when parties comply and have purged themselves of contempt,
    there is no justiciable controversy and appeal must be dismissed).
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    An example is the case of Clement v. Clement.23 In that case,
    the father was found to be in contempt of court for failing to
    make court-ordered child support payments. He was ordered
    committed to jail for 45 days unless he purged himself by
    making an arrears payment of $1,450. A stay of enforcement
    was ordered for a period of 30 days to permit the father to
    appeal, but he neither appealed nor paid the purge amount. He
    was later apprehended, and, the same day, he purged himself
    of contempt by making the required payment. He then sought
    appellate review of the order finding him in contempt. The
    Minnesota Supreme Court dismissed the appeal as moot, rea-
    soning “[t]here is nothing before this court to pass on. [The
    father] paid monies as he was ordered to do to purge himself
    of the contempt.”24
    [8] Like the contemnor in Clement, Lori was presented with
    a choice once she was found to be in willful contempt of court
    and a sanction and purge plan was put in place: She could
    either seek a stay of the sanction pending an appeal or comply
    with the purge plan and thereby purge herself of contempt and
    end the matter.25 She chose the latter, and fully purged her-
    self of contempt by paying into the clerk of the district court
    the sum of $5,073, which has since been disbursed to James.
    The purpose of the civil contempt proceeding—to preserve
    and enforce the rights of the parties and to compel obedience
    to the decree26—has been accomplished. On these facts, we
    23
    Clement, supra note 21.
    24
    
    Id. at 569,
    204 N.W.2d at 819.
    25
    See, e.g., In re Crystal Palace Gambling Hall, Inc., 
    817 F.2d 1361
    ,
    1365 (9th Cir. 1987) (“[i]f the appellants believed that the district court
    incorrectly issued an order, their remedy was to appeal and request a stay
    pending the appeal”); In re Marriage of Crow & Gilmore, 
    103 S.W.3d 778
         (Mo. 2003) (in response to civil contempt order, contemnors have two
    options: They may purge contempt by complying with order rendering
    case moot or may appeal contempt order).
    26
    See Smeal Fire Apparatus Co., supra note 2.
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    find Lori’s appeal seeking to overturn the finding of contempt
    presents no justiciable issue and is moot.
    No Legally Cognizable
    Interest R emains
    Lori does not dispute that she voluntarily and completely
    complied with the purge order, but she nevertheless urges us
    to find that she still has a legally cognizable interest in over-
    turning the finding of contempt. Specifically, she argues that
    because she was “deemed a contemnor”27 that could have impli-
    cations if she is involved in future contempt proceedings.
    Because Lori has fully purged herself of contempt, she is
    seeking, in essence, an advisory appellate opinion on whether
    the contempt order was correct, to use in a future contempt
    action that may never occur. Our mootness analysis might be
    different in an appeal where the purge provision has not yet
    been fully satisfied, but that is not the case here. On these
    facts, Lori has no legally cognizable interest in this appeal and
    it is moot.28
    Public Interest Exception
    Inapplicable
    [9] Lori argues that even if her appeal is moot, we should
    nevertheless review it under the public interest exception to the
    mootness doctrine. An appellate court may choose to review
    an otherwise moot case under the public interest exception if
    it involves a matter affecting the public interest or when other
    rights or liabilities may be affected by its determination.29 This
    is not such a case.
    [10] The public interest exception to the mootness doctrine
    requires consideration of the public or private nature of the
    27
    Reply brief for appellant at 3.
    28
    See Professional Firefighters Assn., supra note 14.
    29
    Nesbitt v. Frakes, 
    300 Neb. 1
    , 
    911 N.W.2d 598
    (2018).
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    question presented, the desirability of an authoritative adjudi-
    cation for future guidance of public officials, and the likelihood
    of future recurrence of the same or a similar problem.30 Lori’s
    appeal challenges the trial court’s interpretation of specific
    terms in her dissolution decree, and findings regarding the
    parties’ particular actions. The questions presented are private,
    not public, in nature, and the likelihood of the same or similar
    issues recurring in another case is remote.31
    [11] Moreover, application of the public interest excep-
    tion is inappropriate where, as here, the issues presented
    on appeal do not inherently evade appellate review.32 As
    explained above, Lori had an opportunity to challenge the
    district court’s finding of contempt by seeking a stay pending
    appeal, but instead, she chose to purge herself of contempt and
    comply with the order. The public interest exception has no
    application on these facts.
    CONCLUSION
    This appeal is moot, because Lori has fully and voluntarily
    purged herself of the civil contempt finding she seeks to over-
    turn. No legally cognizable interest continues to exist, and the
    public interest exception to the mootness doctrine does not
    apply. We therefore dismiss this appeal because it presents no
    justiciable issues.
    A ppeal dismissed.
    30
    
    Id. 31 See
    Putnam, supra note 17 (public interest exception does not apply when
    appeal presents issues that rest on terms of particular sale and particular
    deeds and bequests, because highly unlikely another case could present
    similar factual situation).
    32
    See id.