The Nebraska
Court of Appeals here reverses a juvenile court adjudication grounded
in allegations of inappropriate sexual contact and failure to protect.
The Court’s de novo review indicated that the State had failed
to prove its case for adjudication.
In
re Interest of Jasmine B. (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Juvenile
Court:
- [Appeal
and Error:] Juvenile cases are reviewed de novo on the record,
and an appellate court is required to reach a conclusion independent
of the juvenile court's findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of the
facts over the other. In re Interest of B.R. et al., 270
Neb. 685, 708 N.W.2d 586 (2005).
- [Adjudication:]
Section 43-247(3)(a) states in part that the juvenile court has
jurisdiction of any juvenile "who lacks proper parental care
by reason of the fault or habits of his or her parent, guardian,
or custodian." "At the adjudication stage, in order for
a juvenile court to assume jurisdiction of minor children under
§ 43-247(3)(a), the State must prove the allegations of the
petition by a preponderance of the evidence." In re Interest
of Heather R. et al., 269 Neb. 653, 663, 694 N.W.2d 659, 667
(2005).
Date Filed
and Case No.: January 9, 2007. No. A-06-661.
Court Appealed
From: Separate Juvenile Court of Douglas County: Elizabeth G.
Crnkovich, Judge.
Attorneys
for the Appeal: Hugh I. Abrahamson and Shaun F. Downey for Donald
B., appellant. Stuart J. Dornan, Amy Schuchman, and Renee L. Mathias
for State of Nebraska, appellee. Terri L. Crawford for Debra B.,
appellee and cross-appellant. Susanne Dempsey, guardian ad litem.
Judges:
Sievers, Carlson, and Cassel, Judges.
Authored
By: Sievers, Judge.
Summary:
Jasmine B. was born on 03/16/92. When Jasmine was approximately
5 years old, she was adopted by Donald B. and Debra B. (her great-uncle
and great-aunt), although she had lived in their home since birth.
At around 10:30 p.m. on 05/27/05, Donald and Debra contacted the
police because Jasmine had not come home. An officer responded to
the call and met with Donald and Debra at their home. During questioning,
Debra gave Jasmine's diary to the officer, who read through it for
clues as to why Jasmine might have run away and where she might
have gone. An entry dated 02/28/05 said (with all of the misspellings
and grammatical errors):
Dear Diary
I wish that my mom would just get a divorce because with him hear
I can't do any thing; plus I am tierd of them arguing all the
and like my mom said it is not her & she is not the problem
of the family he is so I realy wish that I can just get up one
day while the are arguing and leave. because when tell my mom
that he has touched me since fith to the 6 grade she didn't believe
me.
Jasmine was
located at a friend's house and was taken into protective custody
as a result of the diary entry. On 05/31/05, the State filed a petition
alleging that Jasmine was a child within the meaning of § 43-247(3)(a)
for the reasons that (1) her father, Donald, subjected her to inappropriate
sexual contact; (2) her mother, Debra, failed to take sufficient
steps to protect Jasmine; and (3) due to the allegations, Jasmine
is at risk for harm. That day, the State filed a motion for immediate
temporary custody of Jasmine and such was granted.
After a hearing,
the juvenile court filed its order on 05/17/06. The juvenile court
found that "the petition filed herein is true"; that Jasmine
comes within the meaning of § 43-247(3)(a) insofar as her parents,
Debra and Donald, are concerned, by a preponderance of the evidence;
and that Jasmine should remain in the temporary custody of the Nebraska
Department of Health and Human Services (DHHS) for appropriate care
and placement. Donald timely appealed to the Nebraska Court of Appeals,
and Debra cross-appealed, the juvenile court's order.
Donald alleged
that the juvenile court erred in finding that the allegations of
inappropriate sexual conduct were true and that Jasmine therefore
came within the meaning of § 43-247(3)(a). Debra alleged that
the juvenile court erred in finding that the allegations of failure
to take sufficient steps to protect Jasmine were true and that Jasmine
therefore came within the meaning of § 43-247(3)(a).
Regarding
Donald’s appeal: The Court reviewed Jasmine's diary and
noted that of the 120 pages in the diary, only 10 pages have any
writing on them and only 3 of those pages contained any sort of
narrative, with the longest being the entry quoted above in the
opinion. “There is one diary entry dated ‘2/2/04' which
stated simply ‘Dear Diary[,] I wish,’ and then 18 pages
later, the entry of ‘2/28/05' appears. The other few pages
with writing have several birthdays, and one entry has a home telephone
number, a cellular telephone number, an e-mail address, and a street
address for ‘Raeven.’ In summary, Jasmine did not write
in her diary on a regular basis.”
The Court also
reviewed the entire record and the videotaped police interview between
Detective Grossoehmig and Jasmine. “Jasmine's diary entry was
written 2 years after the alleged incident when Jasmine had just
been suspended from school--but Jasmine obviously wrote nothing
else of consequence in her diary, although she had other issues
of consequence in her life, such as her school problems and dissatisfaction
with how she was parented” wrote the Court. “Jasmine cannot
identify Donald as the perpetrator. Moreover, there are a number
of inconsistencies in Jasmine's account that, when taken together,
lessen her credibility. Jasmine wrote in her diary that Donald touched
her when she was in the fifth and sixth grades, but she told Detective
Grossoehmig, and testified at the hearing, that Donald touched her
only one time. Jasmine told Detective Grossoehmig that after Donald
left the room, he came back in and kissed her on the cheek, but
at the hearing, Jasmine said that Donald did not come back into
her room that night.”
The Court noted
that the diary entry 2 years after the alleged "touching"
clearly recounts a repeated course of conduct, and Jasmine told
that story initially to an officer, including an alleged incident
of touching 2 months before late May 2005. Her story changed when
talking to Detective Grossoehmig. She did not inform Debra of any
sexual touching, and Jasmine made a diary entry at a time when she
had been suspended from school. “The allegations are obviously
very serious, but Jasmine's demeanor during the taped interview
belies the seriousness of her accusations” they wrote. Donald
denied any sexual touching. “Thus, it is her word against his,
but her story is rife with inconsistencies and contradictions, and
her diary entry indicates a desire that Donald not be a part of
the household.”
The Court said
it could not know for sure if the "touching" incident
actually occurred or whether Donald was the perpetrator, but after
careful review of the record, given the shifting versions and inconsistencies
and Donald's denial, it could not say that the State has proved
the allegations in the petition by a preponderance of the evidence.
“At the core, we cannot find anything in the evidence that
makes Jasmine's allegations, remembering their inconstancies, any
more believable than Donald's denial, remembering that Jasmine apparently
wanted Donald out of the household.” The Court concluded and
found that the State did not carry its burden of proof, and in so
concluding, was not unmindful of the incongruous circumstances involving
Debra recounted later in the opinion, which also impacted the believability
of Jasmine's story. “We reverse the juvenile court's order
of adjudication as to Donald.”
Regarding
the adjudication as to Debra. The Court wrote that the the record
is clear that after Jasmine told Debra that Donald touched her (remembering
that Jasmine did not provide any details regarding the "touching"
incident and Donald recalled touching her shoulder to congratulate
her on a test), Debra confronted Donald and the three of them had
a family meeting to discuss the situation, and by Jasmine's own
admission, Donald never touched her again--although she initially
told a different story to Officer King, the police officer first
involved in finding her in May 2005. Debra's response was appropriate
under the circumstances, remembering that at no time until May 2005
did Jasmine claim that this was a sexual incident. “Therefore,
based on our de novo review, we find that Debra did not fail to
protect Jasmine. We reverse the juvenile court's finding of adjudication
as to Debra” said the Court. REVERSED.
The Nebraska
Court of Appeals finds that because no “assignment of error”
had been set out in appellants brief, it found no “plain error”
in the district court’s actions and affirms its decision. The
dissent points questions whether or not an assignment error had
indeed been set out in the brief and argues that the reading the
brief and incorporating its layout, displays “it is the trial
court's ultimate decision that is claimed as error, not some evidentiary
or procedural ruling where precision in the assignment of error
becomes most critical. Counsel's offense is hardly a capital crime,
but is rather a minor traffic infraction.”
Henningsen
v. Pacesetter Homes (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Rules
of the Court:] The Nebraska Supreme Court has held that parties
wishing to secure appellate review of their claims for relief must
be aware of, and abide by, the rules of the Supreme Court and this
court in presenting such claims. In re Guardianship & Conservatorship
of Larson, 270 Neb. 837, 708 N.W.2d 262 (2006). Any party who
fails to properly identify and present its claim in accordance with
the Supreme Court rules does so at its peril and risks the appellate
court's declining to address the claim. See id.
- [Appeal
and Error:] It has long been the rule in Nebraska appellate
courts that to be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in the
brief of the party asserting the error. Cole v. Isherwood,
271 Neb. 684, 716 N.W.2d 36 (2006). The failure to properly and
specifically assign errors has frequently resulted in the appellate
courts of this state declining to address an issue raised in the
argument of the appellant's brief. See, White v. White, supra.
••• In State v. Eckstein, 223 Neb. 943, 395
N.W.2d 515 (1986), the Nebraska Supreme Court addressed a situation
where an appellant's brief failed to include any assignments of
error or propositions of law and failed to provide proper references
to the transcript and bill of exceptions. The Supreme Court specifically
noted that assignments of error must be particularly, separately,
and concisely set forth in the appellant's brief. See Neb. Rev.
Stat. § 25-1919 (Reissue 1995) and rule 9D(1). The Supreme
Court then noted that "[t]he failure of counsel to comply with
the statute and [court] rules has been a problem for many years"
and cited cases dating back as far as 1914. State v. Eckstein,
223 Neb. at 944, 395 N.W.2d at 516. The Supreme Court recognized
that it had previously "held that in the absence of plain error,
where the appellant has not set out any assignments of error, the
judgment appealed from should be affirmed." Id. at 945, 395
N.W.2d at 517.
Supreme Court
Rules:
- Neb. Ct. R.
of Prac. 9D(1) (rev. 2006) mandates that the appellant's brief
shall contain
the following sections, under appropriate headings, and in the order
indicated:
. . .
b. A table of contents with page references, and an alphabetically
arranged table of cases, statutes, and other authorities cited,
with references to the pages of the brief where cited;
. . .
e. A separate, concise statement of each error a party contends
was made by the trial court, together with the issues pertaining
to the assignments of error. Each assignment of error shall be separately
numbered and paragraphed, bearing in mind that consideration of
the case will be limited to errors assigned and discussed. . . .
. . .
h. The argument shall present each question separately, and shall
present each proposition of law as best sets forth the contentions
of the party.
Plain Error:
- Plain error
will be noted only where an error is evident from the record, prejudicially
affects a substantial right of a litigant, and is of such a nature
that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of
the judicial process. State v. Molina, 271 Neb. 488, 713
N.W.2d 412 (2006).
Date Filed
and Case No.: January 9, 2007. No. A-05-518.
Court Appealed
From: District Court for Sarpy County: George A. Thompson, Judge.
Attorneys
for the Appeal: Robert J. Huck, Richard A. DeWitt, and Scott
D. Jochim for Pacesetter Homes, Inc., d.b.a. Regency Homes, a Nebraska
corporation, appellant. Michael A. Nelsen for Lynda Henningsen,
appellee.
Judges:
Irwin, Sievers, and Cassel, Judges.
Authored
By: Irwin, Judge.
Summary:
Lynda Henningsen. and Pacesetter Homes, Inc., d.b.a. Regency
Homes (Regency Homes) entered into a contract for the construction
of a residence for Henningsen. In February 2005, Henningsen filed
a complaint, asserting that Regency Homes breached the contractual
agreement by constructing her home in a fashion that was less than
workmanlike and contrary to applicable home building standards.
In March 2005, Regency Homes filed an application to compel arbitration
and stay proceedings, pursuant to Neb. Rev. Stat. § 25-2601
et seq. (Reissue 1995 & Cum. Supp. 2006). Regency Homes asserted
that Henningsen had agreed to the contract terms, which incorporated
the warranty and arbitration provision by reference, when she signed
the purchase contract. The district court conducted a hearing regarding
Regency Homes' motion to compel arbitration and accepted into evidence
the purchase contract for the property, Henningsen's certificate
of warranty coverage, and the home buyer's warranty booklet. The
court entered an order which denied the application to compel arbitration
and granted Regency Homes 20 days to file a responsive pleading.
Regency Homes appealed to the Nebraska Court of Appeals.
Regency Homes
did not assign any errors in its brief. Although Regency Homes didi
not specifically assign any errors in its brief, Regency Homes argues
that the district court erred in denying its application to compel
arbitration and stay proceedings. Regency Homes alleged that (1)
Nebraska law specifically provides that arbitration provisions are
valid and enforceable; (2) Henningsen voluntarily and willingly
agreed to the terms of the warranty programs, which included the
arbitration provision; and (3) the enforceability of the arbitration
provision is an issue to be determined by arbitration. Because Regency
Homes failed to assign any error and because the Court did not find
plain error on the record, they affirmed the district court's order.
In the present
case, Regency Homes failed to comply with rule 9D(1). Regency Homes
failed to properly include an assignment of error section under
an appropriate heading and in the proper order specified by the
Supreme Court. Indeed, Regency Homes failed to include an assignment
of error section at all. Although Regency Homes included an argument
and an argument heading asserting that the lower court erred in
its judgment, such fail to satisfy the requirement that to be considered
on appeal, the issue must be specifically assigned as error and
specifically argued.
Regency Homes
argues that the district court erred in denying its motion to compel
arbitration, but does not specifically assign any errors in its
appeal to this court. As a result, we cannot address Regency Homes'
arguments. However, the analysis does not end there. Although Regency
Homes has not assigned any errors, an appellate court always reserves
the right to note plain error which was not complained of at trial
or on appeal. State v. Campbell, 247 Neb. 517, 527 N.W.2d
868 (1995).
Plain error
exists where there is an error, plainly evident from the record
but not complained of at trial, which prejudicially affects a substantial
right of a litigant and is of such a nature that to leave it uncorrected
would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process. Hajenga
v. Hajenga, 257 Neb. 841, 601 N.W.2d 528 (1999). We have reviewed
the record for plain error and find none. Because we find no error
that was not complained of at trial which prejudicially affects
a substantial right of Regency Homes, we affirm the trial court's
order. AFFIRMED.
Cassel, Judge,
CONCURRING. Wrote that by failing to include a separate section
for assignments of error at the place and in the manner required
by Neb. Ct. R. of Prac. 9D(1)(e) (rev. 2006), Regency Homes took
the risk that this court would decline to address its claim. Despite
Regency Homes' failure to assign error in the manner required by
the Nebraska Supreme Court, Judge Cassel considered whether the
district court's denial of Regency Homes' motion to compel arbitration
reached the level of plain error and concluded that it does not.
Assuming without deciding that the denial of the motion to compel
arbitration was error, I find no miscarriage of justice or damage
to the integrity, reputation, or fairness of the judicial process,
and thus, I find no plain error.
Sievers, Judge,
DISSENTING. Judge Sievers respectfully dissented from the result
and the rationale upon which it is premised: the failure to properly
assign error. The Dissent contained an exact reproduction of the
table of contents from the appellant's brief. The Dissent also set
forth an exact reproduction from page 5 of the appellant's brief
and printed out the Supreme Court rules regarding the assignment
of error in the briefs. “The appellant, in accordance with
its claimed error, argues only that the district court simply was
wrong in how it decided the case--no evidentiary or procedure rulings
are involved or discussed. The function of assignments of error
is to set out the issues presented on appeal. They serve to advise
the appellee of the questions submitted for determination in order
that the appellee may know what contentions must be met. They also
advise the reviewing court of the issues which are submitted for
decision” wrote the judge. “Considering the quoted sections
from the appellant's brief, I submit that the single assignment
of error has been set out ‘particularly’ as required by
§ 25-1919 and that it is only by a very strict and literal
reading of the above-quoted Supreme Court rule that one can say
that the appellant has failed to set forth an assignment of error
in a way that allows for appellate review, despite the very ‘concise’
statement of the appellant's claim. Obviously, the quoted sections
from the brief advise the appellee, as well as this court, of the
issue before us for determination. Moreover, it is ‘separately
numbered and paragraphed’ as required by the court rule quoted
above.”
The Dissent
argued that a claim of error is stated concisely in emphatic print
in two places in the brief--first in all capital letters and then
in bold capital letters. “This is ‘good enough’ for
me--remembering that it is the trial court's ultimate decision that
is claimed as error, not some evidentiary or procedural ruling where
precision in the assignment of error becomes most critical. Counsel's
offense is hardly a capital crime, but is rather a minor traffic
infraction.” Accordingly, Judge Sievers would have addressed
the merits of the appellant's claim of error.
A trial court’s
decision to grant a motion to remove a child to another jurisdiction
is reversed here by the Nebraska Court of Appeals, which found that
the trial court abused its discretion in finding that the movant
met her burden of proof to demonstrate a legitimate reason for the
removal and in finding that movant met her burden to demonstrate
that removal was in the child’s best interests.
Canterbury
v. Istas (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Child Custody:
- [Appeal
and Error:] Child custody determinations, and visitation determinations,
are matters 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. McLaughlin
v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); Wild
v. Wild, 13 Neb. App. 495, 696 N.W.2d 886 (2005). •••
A judicial abuse of discretion exists when a judge, within the effective
limits of authorized judicial power, elects to act or refrains from
acting, and the selected option results in a decision which is untenable
and unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through a judicial system.
Id.
- [Motion
to Remove from Jurisdiction:] In order to prevail on a motion
to remove a minor child to another jurisdiction, the custodial parent
must first satisfy the court that he or she has a legitimate reason
for leaving the state. After clearing that threshold, the custodial
parent must next demonstrate that it is in the child's best interests
to continue living with him or her. Id.
Removal from
Jurisdiction:
- [Employment
Opportunities:] Nebraska case law recognizes that legitimate
employment opportunities for a custodial parent may constitute a
legitimate reason for leaving the state. Wild v. Wild, supra.
See, Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000);
Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000); Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999); Carraher
v. Carraher, 9 Neb. App. 23, 607 N.W.2d 547 (2000). However,
the Nebraska Supreme Court has specifically held that such legitimate
employment opportunities may constitute a legitimate reason where
there is a reasonable expectation of improvement in the career or
occupation of the custodial parent. See Farnsworth v. Farnsworth,
supra. See, also, Wild v. Wild, supra. Similarly, such
legitimate employment opportunities may constitute a legitimate
reason where the custodial parent's new job includes increased potential
for salary advancement. Jack v. Clinton, supra; Wild v. Wild,
supra. See, also, Farnsworth v. Farnsworth, supra. It has also
previously been determined that a career enhancement for a custodial
parent's spouse is a legitimate reason for removal when the career
change occurred after a remarriage. See, McLaughlin v. McLaughlin,
supra; Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325 (1994).
- [Best Interest
of Child:] In considering a motion to remove a minor child to
another jurisdiction, the paramount consideration is whether the
proposed move is in the best interests of the child. Jack v.
Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000). See Farnsworth
v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999). In determining
whether removal to another jurisdiction is in the child's best interests,
the trial court considers (1) each parent's motives for seeking
or opposing the move; (2) the potential that the move holds for
enhancing the quality of life for the child and the custodial parent;
and (3) the impact such a move will have on contact between the
child and the noncustodial parent, when viewed in the light of reasonable
visitation. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d
577 (2002); Wild v. Wild, 13 Neb. App. 495, 696 N.W.2d 886
(2005). (Factors to Consider:) In determining the potential
that the removal to another jurisdiction holds for enhancing the
quality of life of the parent seeking removal and of the children,
a court should consider the following factors: (1) the emotional,
physical, and developmental needs of the children; (2) the children's
opinion or preference as to where to live; (3) the extent to which
the relocating parent's income or employment will be enhanced; (4)
the degree to which housing or living conditions would be improved;
(5) the existence of educational advantages; (6) the quality of
the relationship between the children and each parent; (7) the strength
of the children's ties to the present community and extended family
there; and (8) the likelihood that allowing or denying the move
would antagonize hostilities between the two parties. McLaughlin
v. McLaughlin, supra. See Wild v. Wild, supra. This list
of factors should not be misconstrued as setting out a hierarchy
of factors. Depending on the circumstances of a particular case,
any one factor or combination of factors may be variously weighted.
McLaughlin v. McLaughlin, supra. See Wild v. Wild, supra.
Date Filed
and Case No.: January 9, 2007. No. A-05-1465.
Court Appealed
From: District Court for Douglas County: Patricia A. Lamberty,
Judge.
Attorneys
for the Appeal: Kelly T. Shattuck for Brent J. Istas, appellant.
Brandie M. Fowler for Deanna D. Canterbury, f.k.a. Deanna D. Istas,
appellee.
Judges:
Sievers, Carlson, and Cassel, Judges.
Authored
By: Carlson, Judge.
Summary:
Brent J. Istas appeals from an order of the district court for Douglas
County which granted his ex-wife, Deanna D. Canterbury, formerly
known as Deanna D. Istas, permission to remove the parties' minor
child, Bryce James Istas, from Nebraska to Texas. On appeal, Brent
challenges the trial court's findings that Deanna demonstrated a
legitimate reason for removal and that removal is in Bryce's best
interests. Deanna and Brent were married on 04/01/99 and one child,
Bryce, age 5 at the time of trial, was born during the marriage.
The parties were divorced 08/21/03 and were awarded joint legal
custody of Bryce, with Deanna awarded primary physical custody.
On 05/25/05,
Brent filed a complaint for modification alleging that Deanna had
informed him that she intended to move to Texas and asking the court
to award him custody of Bryce. On June 3, Deanna filed an answer
and counterclaim denying the allegations in Brent's complaint and
seeking permission to remove Bryce from Nebraska to Texas. Prior
to trial, the parties mediated a partial parenting plan to take
effect in the event Deanna was given permission to move with Bryce
to Texas setting a parenting time for Brent and Bryce.
Trial was held
on 09/29/05. The evidence showed that on 04/16/05, Deanna married
Bradley Canterbury. At the time Deanna and Bradley were married,
Bradley was working as a law enforcement officer at the Federal
Reserve Bank in Omaha. Bradley moved to Dallas, Texas, in June 2005
as a result of a voluntary transfer from the Omaha branch of the
Federal Reserve Bank to the Dallas branch. Deanna and Bradley both
testified that Bradley requested the transfer to Dallas because
a supervisor at the Omaha branch told Bradley that the Omaha branch
was going to close. Based on the evidence, the Omaha branch of the
Federal Reserve Bank was still open at the time of trial, and Bradley
testified that there had been no public announcement that the Omaha
branch was closing. Bradley testified that he intends to get a different
law enforcement job in Dallas in the future that pays more than
he is making at the Federal Reserve Bank ($24,000). He testified
that he researched job opportunities in law enforcement in the Dallas
area and found that there are more job opportunities in Dallas than
in Omaha. Deanna was asked what attempts Bradley made to find comparable
employment in Omaha or the surrounding area, and she responded that
Bradley applied with the Omaha Police Department and "applied
in taking the MAPA test." No further explanation was given.
Deanna testified that she works part time at a hospital as a neonatal
intensive care nurse earning $20.50 per hour and that job opportunities
for neonatal nurses in the Dallas area were more available in Dallas
than in Omaha.
The trial court
entered its order on 11/03/05 granting Deanna permission to remove
Bryce from Nebraska to Texas and denying Brent's request for custody.
In regard to the removal, the trial court found that Deanna had
a legitimate reason for removal in that she desired to reside with
Bradley, her husband, and in that she and Bradley both have a reasonable
expectation of improvement in their careers or occupations. The
court further found that neither party was acting in bad faith or
seeking to frustrate the rights of the other party, that Bryce's
quality of life would be enhanced by the removal, and that the partial
parenting plan provides for reasonable visitation arrangements which
permit Brent to have a meaningful relationship with Bryce. The court
concluded that it is in the best interests of Bryce that Deanna
be permitted to remove him to Texas. The trial court also adopted
the parties' partial parenting plan. Brent appealed to the Nebraska
Court of Appeals.
Brent assigned
that the trial court erred in finding that Deanna had a legitimate
reason to remove Bryce from Nebraska to Texas and in finding that
the removal was in Bryce's best interests. The trial court found
that Deanna had a legitimate reason to remove Bryce to Texas in
that she desired to reside with Bradley, her new husband, and in
that Deanna and Bradley both have a reasonable expectation of improvement
in their careers or occupations. The Court’s summary of the
record, showed that Bradley asked to transfer to Dallas merely for
a lateral position and did so just a month after he and Deanna were
married. He testified that he does not plan to continue working
at the Federal Reverse Bank on a long-term basis. “It appears
to us that the transfer provided a reason to move to Dallas rather
than an opportunity to improve Bradley's career” they wrote.
“Further, there was evidence that Deanna has wanted to live
in Texas, or at least in a warm climate, for some time.” The
Court concluded that the record failed to prove that Bradley's transfer
provided a reasonable expectation of improvement in his and Deanna's
careers or occupations, and the trial court therefore erred in concluding
to the contrary. “Thus, we conclude that the trial court abused
its discretion in finding that Deanna carried her burden to prove
a legitimate reason to remove Bryce from Nebraska to Texas.”
Since the Court
found that Deanna did not meet the threshold requirement of demonstrating
a legitimate reason for the removal, they said the analysis could
stop there, however they further concluded that even if Deanna had
proved a legitimate reason for removal, she did not meet her burden
to prove that removal to Texas is in Bryce's best interests upon
their de novo review. Deanna failed to adduce evidence to demonstrate
that the factors to be considered in evaluating Bryce's best interests
weighed in favor of allowing removal. “Specifically, we determine
that the parties' motives for seeking or opposing the removal are
balanced, that Bryce's quality of life would not be enhanced by
the removal, and that Brent's parent-child relationship with Bryce
would be adversely impacted by the removal. Therefore, we conclude
that the trial court abused its discretion in finding that Deanna
met her burden to demonstrate that removal to Texas was in Bryce's
best interests. As a result, the trial court abused its discretion
in allowing Deanna to remove Bryce to Texas.”
The Court concluded
that the trial court erred in finding that Deanna met her burden
of proof to demonstrate a legitimate reason for the removal and
in finding that Deanna met her burden to demonstrate that removal
to Texas was in Bryce's best interests. “Accordingly, we find
that the trial court abused its discretion in granting Deanna's
request to remove Bryce to Texas, and we reverse the trial court's
order granting removal.” REVERSED.
In this case
the Nebraska Court of Appeals examines a postplea Brady motion,
and finds that the defendant failed to show that specific Brady
material required to be disclosed was not disclosed. Further, defendant
did not contend that material covered under Neb. Rev. Stat. §
29-1912 (Discovery Statutes) was not disclosed and affirms
this misdemeanor child abuse conviction (defendant was the brother
of the defendant mother in State v. Blair, 272 Neb. 951 (2007))
.
State
v. Blair (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Discovery:]
Unless granted as a matter of right under the Constitution or other
law, discovery is within the discretion of the trial court, whose
ruling will be upheld on appeal unless the trial court has abused
its discretion in the discovery ruling. State v. Phelps, 241 Neb.
707, 490 N.W.2d 676 (1992); State v. Tuttle, 238 Neb. 827,
472 N.W.2d 712 (1991).
- [Sentencing:]
Sentences within statutory limits will be disturbed by an appellate
court only if the sentences complained of were an abuse of judicial
discretion. State v. Wagner, 271 Neb. 253, 710 N.W.2d 627
(2006).
Discovery:
- [Exculpatory
Material:] The U.S. Constitution requires the State to disclose
exculpatory material to an accused. State v. Phelps, supra.
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963). In Brady, the U.S. Supreme Court held that "the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution." 373 U.S. at 87. "'[F]avorable
evidence is material, and constitutional error results from its
suppression by the government, "if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different."'" State
v. Castor, 257 Neb. 572, 584, 599 N.W.2d 201, 211 (1999) (quoting
Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.
2d 490 (1995)). Accord United States v. Bagley, 473 U.S.
667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Impeachment evidence,
as well as exculpatory evidence, falls within the Brady rule. Id.
See, also, State v. Dyer, 245 Neb. 385, 513 N.W.2d 316
(1994). ••• In United States v. Bagley, 473
U.S. at 682, the U.S. Supreme Court made it clear that the prosecution's
duty under Brady to disclose evidence which is material covers "the
'no request,' 'general request,' and 'specific request' cases of
prosecutorial failure to disclose evidence favorable to the accused."
See, also, Strickler v. Greene, 527 U.S. 263, 119 S. Ct.
1936, 144 L. Ed. 2d 286 (1999) (duty to disclose material evidence
applicable even though there has been no request by accused, and
duty may be violated where evidence has been suppressed either willfully
or inadvertently). A prosecutor's duty to disclose evidence in response
to even a very general discovery request arises if the evidence
contains obvious exculpatory characteristics. State v. Null,
supra.
- [Statutes:]
In addition to constitutional due process requirements as delineated
in Brady, discovery in criminal cases in Nebraska is governed by
statute. See, State v. Castor, supra; § 29-1912. Section
29-1912 has been construed as requiring "'more than the constitutional
minimum'" with respect to disclosure. State v. Castor,
257 Neb. at 585, 599 N.W.2d at 211.
Under §
29-1912, whether a prosecutor's failure to disclose evidence results
in prejudice depends on whether the information sought is material
to the preparation of the defense, meaning that there is a strong
indication that such information will play an important role in
uncovering admissible evidence, aiding preparation of witnesses,
corroborating testimony, or assisting impeachment or rebuttal.
State v.
Kula, 252 Neb. 471, 486, 562 N.W.2d 717, 727 (1997) (citing
State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995)). Section
29-1912(1) applies specifically to felonies, misdemeanors, or "a
violation of a city or village ordinance for which imprisonment
is a possible penalty." While we note that under § 29-1912(3),
if the trial court refuses to grant an order pursuant to §
29-1912, the trial court must render its findings in writing together
with the facts upon which the findings are based, this provision
does not bear upon the postplea Brady motion, because it was not
a § 29-1912 motion.
Sentencing:
- When imposing
a sentence, "a sentencing judge should consider the defendant's
age, mentality, education, experience, and social and cultural background,
as well as his or her past criminal record or law-abiding conduct,
motivation for the offense, nature of the offense, and the amount
of violence involved in the commission of the crime." State
v. Decker, 261 Neb. 382, 398, 622 N.W.2d 903, 917 (2001) (citing
State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999)).
Date Filed
and Case No.: January 9, 2007. No. A-06-254.
Court Appealed
From: District Court for Lancaster County, Paul D. Merritt,
Jr., Judge, on appeal thereto from the County Court for Lancaster
County, Gale Pokorny, Judge.
Attorneys
for the Appeal: Bernard J. Glaser, Jr., for Jason Blair, appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Irwin,
Sievers, and Carlson, Judges.
Authored
By: Sievers, Judge.
Summary:
Jason Blair appeals the decision of the Lancaster County District
Court which affirmed the Lancaster County Court's imposition of
a sentence of 12 months' confinement in jail on a plea of no contest
to misdemeanor child abuse, a Class I misdemeanor. (See, State
v. Blair, 272 Neb. 951 (2007) where Blair, the uncle of Christian
Reifler, died while living among his mother, his uncle and three
other young adults) At the heart of the appeal is the trial court's
denial of Blair's postplea and presentence "Brady motion."
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963).
On 09/10/04,
the State filed a complaint against Blair charging him with misdemeanor
child abuse arising from the death of Christian. Blair filed a motion
for discovery requesting the following information: Blair's statements
as defined by Neb. Rev. Stat. §§ 29-1912(1)(a) and 29-1922
(Reissue 1995); Blair's prior criminal record; Blair's recorded
testimony before a grand jury; all documents or other tangible things
that could be used during any phase of the prosecution; the name
of every person who identified Blair in a lineup; all exculpatory
information, whether or not the State intended to use such information
during any phase of the prosecution; and the results and reports
of the mental examinations and scientific experiments associated
with Blair's case. Included in this motion for discovery was a motion
to take depositions, as well as a motion to produce statements and
a motion to produce evidence. The State had no objections to the
trial court's granting the motions. Blair's motion for discovery
was sustained. The motion to take depositions was slated for a later
hearing. As the matter went on, Blair’s counsel also spoke
with the trial judge of his desire to sit in on, or obtain records
from depositions taking place in Blair’s sister, Brandy’s,
case.
On 02/03/05,
Blair's counsel informed the trial court that if Blair went forward
with the jury trial, the State planned to dismiss the instant case
and file it as a felony. Blair's counsel requested a 3-week continuance
in order to speak with Blair's probation officer to see how the
plea in the misdemeanor child abuse case would affect his current
probation. During this hearing, there was no mention of the motion
to take depositions or obtaining the depositions from Brandy's counsel.
Blair was rearraigned
on 03/23/05 and he entered a plea of no contest to the charge of
child abuse, a Class I misdemeanor. In exchange for the plea, the
State agreed not to refile the charge as a felony. The plea was
accepted, and Blair was found guilty. Blair filed a "Motion
for Discovery; Brady Materials" (hereinafter postplea
Brady motion) on 04/26/05 in accordance with Brady.
Such motion did not reference § 29-1912, which provides for
discovery in criminal cases. The trial court, apparently without
a hearing, made a docket entry on May 2, denying, without comment,
the postplea Brady motion in its entirety.
On 07/15/05,
the trial court sentenced Blair to 12 months' confinement in jail.
Blair appealed to the district court alleging that the trial court
erred in denying his postplea Brady motion and that the trial
court abused its discretion in imposing an excessive sentence. The
district court found that Blair's assignments of error were without
merit. Blair appealed the district court's decision to the Nebraska
Court of Appeals. On appeal, Blair alleged that the district court
erred in affirming (1) the trial court's refusal to order the State
to produce Brady materials and (2) the trial court's imposition
of an excessive sentence and refusal to sentence Blair to probation,
because the trial court exhibited bias or prejudice in imposing
the sentence.
Regarding
(1): Blair argued that the trial court should have granted his
postplea Brady motion even though the trial court previously
granted his § 29-1912 discovery motion. The Court noted Blair's
argument relied on the constitutional foundations of Brady,
but no showing was made in the trial court--nor was it argued in
Blair's brief--that specific Brady material required to be
disclosed to Blair was not disclosed. Further, Blair does not contend
that material covered under § 29-1912 was not disclosed. “The
absence of such a showing clearly undercuts Blair's argument that
prejudicial error occurred when the trial court denied his postplea
Brady motion” wrote the Court.
Regarding
(2): Blair argued that the sentencing court abused its discretion
by imposing a sentence which was unsupported by the evidence and
was contrary to the law, that the imposition of the maximum sentence
upon Blair was based on judicial bias, and that the court failed
to consider relevant factors in not sentencing Blair to probation.
Here, the trial court, after reviewing the PSI, wrote in the sentencing
order about the conditions surrounding Christian's treatment and
death "After reviewing the [p]resentence materials assembled
. . . and the descriptions of the living arrangements in the Blair
household in June 2004, the Court concludes that . . . an understanding
had been reached" between Brandy and Blair: ‘In return
for living essentially free of charge,’ Blair ‘agreed
to be a care provider for Christian.’ In the second-to-last
paragraph of the sentencing order, the trial court wrote, “Blair
and others who might find themselves in his situation need to kn[o]w
that a child's life is a lot more than just a necessary prerequisite
to a welfare check.” At the end of the sentencing hearing,
the trial judge made a comment similar to the written sentencing
order: “[A] child's life . . is a lot more than just a necessary
prerequisite to a welfare check.” The Court ruled that contrary
to Blair's argument that the imposed sentence lacked substantial
evidence and was contrary to the law, the trial court reviewed all
the relevant evidence--i.e., Blair's prior criminal convictions,
the living arrangement between Blair and Brandy, and the information
contained in the PSI--and, pursuant to the evidence, did not abuse
its discretion when sentencing Blair.
Regarding the
trial court’s written comments, the Court wrote that whether
Blair or other individuals living in or visiting the residence where
Christian was found dead were receiving public assistance, standing
alone, is of marginal import in sentencing. “Perhaps the trial
court's use of the term ‘welfare’ was unartful. Nonetheless,
we read the trial court's challenged comments as addressing the
fact that Blair has not been regularly employed and, instead, has
accumulated a substantial record at a young age--which does say
something (not positive) about his ‘social and cultural background,’
(Citation omitted by Elaw) which is clearly a proper sentencing
consideration.” They found that Blair did not meet his burden
of overcoming the presumption of judicial impartiality and that
accordingly, the trial judge did not exhibit judicial bias in the
imposition of Blair's sentence.
Furthermore,
the Court found the trial court did not abuse its discretion in
denying Blair probation. “Given Blair's three prior criminal
convictions (for which he was still on probation at the time of
Christian's death), any lesser sentence would have depreciated the
seriousness of Blair's crime. Blair's sentence of 12 months' incarceration
is not an excessive sentence.” AFFIRMED.
