A credit card holder appealed, pro se, from an order of the district court affirming the county court’s order granting the motion of the credit card company for summary judgment and ordering payment of the debt. As appellant failed to argue the same issues before the Nebraska Court of Appeals which he argued to the district court, the Court could only look to plain error and finding none, affirmed.
MBNA America Bank v. Runyan (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Summary Judgment:
1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
2. [Proof:] A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial. At that point, the burden of producing evidence shifts to the party opposing the motion. Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
Appeal and Error:
1. [Assignment of Error and Argument:] 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. White v. White, 271 Neb. 43, 709 N.W.2d 325 (2006). Similarly, in the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
Date Filed and Case No.: March 13, 2007. No. A-06-541.
Court Appealed From: District Court for Valley County, Ronald D. Olberding, Judge, on appeal thereto from the County Court for Valley County, Alan L. Brodbeck, Judge.
Attorneys for the Appeal: Phillip E. Runyan, appellant., pro se. Margaret A. McDevitt for MBNA America Bank, N.A., appellee.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Carlson, Judge.
Summary: In 2003, MBNA issued Phillip E. Runyan a credit card, and the terms and conditions of the credit card agreement provided for binding arbitration in the event of any dispute. MBNA alleged that after using the credit card and making payments on his account, Runyan defaulted, and on 05/19/04 an arbitration award was entered against Runyan in the amount of $11,324.23. Subsequently, MBNA filed a motion for summary judgment, stating that no genuine issue of material fact existed and seeking confirmation of the arbitration award. Runyan then filed a response to MBNA’s motion, stating that summary judgment should not be granted because MBNA failed to produce both an original arbitration agreement containing his signature and an original credit card application signed by him. Runyan attached two documents to his response: his own affidavit and MBNA’s responses to his requests for admissions.
A summary judgment hearing was held, at which an affidavit by Gregory Canarp, a custodian of MBNA records was entered into evidence. Canarp stated that Runyan applied for a credit card with MBNA and that MBNA issued Runyan a credit card with a credit card agreement which provided for binding arbitration in the event of any dispute. A copy of the credit card agreement was attached to Canarp’s affidavit. Canarp testified that there is no written contract showing that Runyan agreed to pay the charges if MBNA issued him a credit card. Rather, Canarp stated that when an application is submitted by an individual and accepted by MBNA, the individual receives a credit card with terms and conditions which constitute the “agreement” between the parties. Canarp stated that by the terms of the application and the agreement, the individual’s use of the credit card constitutes acceptance of the credit card and its terms and conditions. Canarp stated that after receiving the card, Runyan used the card and made payments on his account. Canarp stated that subsequently, Runyan stopped making payments and defaulted on the agreement, leaving an unpaid balance of $11,324.23. Canarp stated that arbitration proceedings then took place before “the National Arbitration Forum” and that Runyan had the opportunity to present evidence and information to “the Arbitration Board.” Canarp testified that an arbitration award was entered against Runyan in the amount of $11,324.23 and Runyan was sent notice of the award. Runyan did not present or offer any evidence at the hearing.
The county court found that no genuine issues of material fact existed and that MBNA was entitled to judgment as a matter of law. Runyan then appealed to the district court, which affirmed the trial court’s order. He then appealed to the Nebraska Court of Appeals.
Which errors would be addressed by the Nebraska Court of Appeals? On appeal, Runyan’s assigned errors which were not the same errors he argued in his brief. While the Court recognized that Runyan represented himself throughout these proceedings, it also recognized that a litigant proceeding on a pro se basis is obligated to follow the same appellate rules and procedures applicable to counsel. Finding no plain error, the Court addressed Runyan’s only allegation of error that was both assigned and discussed.
Did the trial court overlooked several deficiencies in Canarp’s affidavit? Runyan pointed to Canarp’s testimony and stated that the trial court erred in accepting Canarp’s statements as true, because Canarp failed to attach any proof to support his testimony. The Court disagreed as attached to Canarp’s affidavit is an 18-page exhibit showing each and every detail of Runyan’s credit card account with MBNA, including Runyan’s charges, the payments Runyan made, and any credits Runyan received, in addition to a copy of the credit card agreement pertaining to Runyan’s credit card account. A copy of the arbitration award was also attached to Canarp’s affidavit. When MBNA placed into evidence Canarp’s affidavit with the above statements, MBNA made a prima facie case by producing enough evidence to demonstrate that it would be entitled to a judgment if the evidence were uncontroverted at trial. At that point, the burden shifted to Runyan, who failed to put forth any evidence at the summary judgment hearing. Although Runyan attached his affidavit to his motion opposing summary judgment, Runyan failed to enter his affidavit into evidence at the hearing. “For these reasons, Runyan’s arguments are without merit” said the Court.
What about several other alleged deficiencies Runyan argues were in Canarp’s affidavit? Runyan alleged as deficient Canarp’s possible use of a hand stamp to place his name on the affidavit and Canarp’s failure to show his address or the city he resides in. Runyan also stated that Canarp’s signature is illegible. The Court reviewed Canarp’s affidavit and concluded that Canarp’s affidavit is not deficient for any of the reasons Runyan mentions.
Conclusion: After reviewing the record, the Court concluded that the trial court did not err in granting MBNA’s motion for summary judgment AFFIRMED.
In this appeal, a child’s mother appeals an order of the district court granting the child’s father custody of the parties’ minor child (the parties were not married.) On appeal, the mother alleged that the court erred in granting the father custody, because he did not request custody in any pleading, because the court unduly emphasized the mother’s move from Omaha to Lincoln as a basis for the award, and because the custody award resulted in the child’s being separated from a half sibling. The Nebraska Court of Appeals found no abuse of discretion by the court, and affirmed.
State on behalf of Schlautman-Sudik v. Schlautman (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Pleadings:
1. As a general rule, a judgment must respond to the pleadings; a judgment based upon an issue not pled is a nullity. I.P. Homeowners v. Morrow, 12 Neb. App. 119, 668 N.W.2d 515 (2003). ••• A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Id. See, also, Krause v. Crossley, 202 Neb. 806, 277 N.W.2d 242 (1979). ••• When a court enters a judgment or awards relief beyond the prayer of the complaint or the scope of its allegations, the excessive relief is void for want of jurisdiction. I.P. Homeowners v. Morrow, supra. The pleadings frame the issues upon which the case is to be tried and advise the adversary as to what he or she must meet. Keenan Packaging Supply v. McDermott, 13 Neb. App. 710, 700 N.W.2d 645 (2005). The issues in a given case will be limited to those which are pled. Id.
Child Custody:
1. When custody of a minor child is an issue, child custody is determined by parental fitness and the child’s best interests. See, Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). (dissolution of marriage proceeding); Spence v. Bush, 13 Neb. App. 890, 703 N.W.2d 606 (2005) (paternity proceeding). When both parents are found to be fit, the inquiry for the court is the best interests of the children. Gress v. Gress, supra. In determining the best interests of the child in a custody determination, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (2) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (3) the general health, welfare, and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family or household member. § 42-364(2); Gress v. Gress, supra.
2. [Appeal and Error:] Child custody 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. Gress v. Gress, supra.
Date Filed and Case No.: March 13, 2007. No. A-06-385.
Court Appealed From: District Court for Douglas County: Marlon A. Polk, Judge.
Attorneys for the Appeal: Lyle Joseph Koenig for Diana L. Sudik, third-party defendant, appellant. Matthew Stuart Higgins for Michael J. Schlautman, defendant and third-party plaintiff, appellee.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: The numerous court proceedings which finally led to this appeal were set out in the opinion and culminated in a hearing on a petition filed by the child’s mother Diana L. Sudik. Suffice it to say the matter was initiated by the State to set paternity and support, which led to actions by Sudik and answers and cross-petitions by the child’s father, Michael J. Schlautman all of which were consolidated by the district court. The matter culminated in a hearing and the evidence indicated that after sharing custody of the child in Omaha, Sudik moved from Omaha to Lincoln in June 2005, where she was living on a full-time basis with her fiance; the minor; and Sudik’s older child, the minor’s half sibling, and on a part-time basis with two of her fiance’s children. Sudik acknowledged that the principal reason for her move to Lincoln was her fiance. The evidence indicated that Schlautman was living in Omaha. Both parties asserted that the joint custody arrangement was no longer working. The court entered an order finding both parties to be “excellent” parents and found that the minor’s best interests were the determining factor in resolving the issues presented. The court held that joint custody was no longer feasible. The court also noted that the primary complicating factor that made joint custody no longer workable was Sudik’s move from Omaha to Lincoln. The court specifically noted the factors to consider in a best interests analysis pursuant to Neb. Rev. Stat. § 42-364 (Reissue 2004). The court concluded that the minor’s best interests would be served by placing the minor in the sole legal and physical custody of Schlautman. The court also made specific awards concerning visitation and child support. Sudik filed a motion for new trial, which was denied and this appeal to the Nebraska Court of Appeals followed.
Did the district court err in granting Schlautman custody?
1. Should the district court have granted Schlautman custody, because he failed to affirmatively request custody in his pleading? The Court found that Sudik misconstrues the law, and the issue of to whom custody should be awarded was placed squarely before the court in the pleadings. In this case, the issue of permanent custody, an issue that had not previously been resolved by any court order or decree, was placed in issue by Sudik herself. Sudik pled that she should be awarded custody of the minor and that such would be in the minor’s best interests, and Schlautman denied Sudik’s assertions. At trial, both parties litigated the issue of custody and presented testimony requesting custody of the minor. As such, we find no merit to Sudik’s first argument.
2. Did the district court err in granting Schlautman custody on the basis of her move to Lincoln? The Court said the record in this case indicates two fit parents. The minor is too young to express an opinion on custody, and there is no evidence of misconduct on the part of either parent. “Indeed, the evidence indicates that the parties were able to conduct a joint custody arrangement and equally share in parenting responsibilities when Sudik lived in Omaha” they said. The evidence also indicated that Schlautman is capable of providing a stable environment for the minor. There is no evidence to indicate that awarding custody of the minor to Schlautman constituted an abuse of discretion by the court.
3. Did the district court err in granting Schlautman custody, because such an award resulted in the minor’s being separated from his half sibling, who lives with Sudik in Lincoln? Although Sudik correctly notes in her brief that in determining the custody of two minors, children should be kept together, the court in this case was determining the custody of only one child. As noted in the opinion, there was no abuse of discretion in the court’s determination that the minor’s best interests would be served by awarding custody to Schlautman. The minor’s existing relationship with other family members, including his half sibling, is but one factor to consider. “We find no merit to this assignment of error.”
Conclusion: The Court found no merit to Sudik’s arguments on appeal and found that the district court did not abuse its discretion in awarding custody of the minor to Schlautman. AFFIRMED.
Jeffrey L. Volcek brought these appeals from the district court's affirmance of the sentences imposed by the county court in two cases concerning Volcek's violation of city ordinances concerning maintenance of real property. In case No. A-06-568, Volcek attempted to challenge the county court's failure to waive a 45-day jail sentence imposed in a probation order. The Nebraska Court of Appeals found Volcek's appeal regarding this sentence to be untimely, and dismissed that appeal. In case No. A-06-569, Volcek challenged the county court's sentence of 45 days' imprisonment and the Court found no abuse of discretion and upheld the district court's affirmance of that sentence.
State v. Volcek, 15 Neb. App. 416 (2007)
Court of Appeals Headnotes
Criminal Law:
[Sentences:] Judgments. In a criminal case, the judgment is the sentence.
Constitutional Law:
[Statutes:] (Jurisdiction: Time: Appeal and Error.) The appellate jurisdiction of a court is contingent upon timely compliance with constitutional or statutory methods of appeal.
Sentences:
[Probation and Parole:] (Waiver: Final Orders: Appeal and Error.) Sentencing orders in which a defendant is sentenced to probation with one term of probation's being a jail term that may or may not ultimately be waived by the court are final, appealable orders.
Convictions:
[Ordinances:] (Sentences: Judicial Notice: Appeal and Error.) When considering an assignment of error claiming the imposition of an excessive sentence upon a conviction based on a municipal ordinance, an appellate court will not take judicial notice of the ordinance specifying the penalties for a violation unless the ordinance is made a part of the bill of exceptions or is included in the certified transcript prepared by the clerk of the county court.
Records:
[Appeal and Error.] It is incumbent upon the appellant to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.
[Ordinances:] (Appeal and Error.) Where no ordinance which specifies the penalties for a violation is in the record to review, the appellate courts do not address excessive sentence assignments of error.
Date Filed and Case No.: March 13, 2007. Nos. A-06-568, A-06-569.
Court Appealed From: Appeal from the District Court for Douglas County, J. Patrick Mullen, Judge, on appeal thereto from the County Court for Douglas County, Lawrence Barrett, Judge.
Attorneys for the Appeal: Jeff T. Courtney for Jeffrey L. Volcek, appellant. Paul D. Kratz, Martin J. Conboy III and J. Michael Tesar for State of Nebraska , appellee.
Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.
Authored By: Irwin, Judge.
Summary: In Case No. A-06-568 the State filed a complaint county charging Volcek with the violation of a number of city ordinances concerning maintenance of real property. On 08/25/05, Volcek entered pleas of guilty to two counts, the State dismissed the rest and the county court sentenced Volcek to a term of 6 months' probation containing a provision requiring Volcek to serve a term of 45 days' imprisonment to begin on 12/15/05 unless waived by the Court. The probation order also set a hearing date on December 15 for the purpose of determining whether said jail sentence should be waived. No appeal was taken from the probation order. At the conclusion of the December 15 hearing, the court declined to waive the jail sentence. Volcek appealed to the district court, which affirmed and Volcek appealed to the Nebraska Court of Appeals.
Did Volcek timely appeal the sentence imposed in case No. A-06-568? In a criminal case, the judgment is the sentence and appellate jurisdiction of a court is contingent upon timely compliance with constitutional or statutory methods of appeal. It is clear that in Nebraska, sentencing orders in which a defendant is sentenced to probation with one term of probation's being a jail term that may or may not ultimately be waived by the court are final, appealable orders. As such, the county court order sentencing Volcek to probation was a final, appealable order from which no appeal was taken. "Inasmuch as the probation order itself was a final, appealable order, it is apparent that the county court's later decision not to waive the term of incarceration is not itself an appealable order" ruled the Court. "First, we note that there is no authority in this state for allowing an appeal from a court's ultimate determination of whether to waive a jail term imposed as a term of probation. Second, we note that a court's determination not to waive such a jail term does not affect a substantial right and does not fit within any of the three types of final, appealable orders set forth in § 25-1902." Because Volcek failed to appeal from the sentencing order which first imposed the jail term as a term of probation, he Court found that Volcek failed to timely perfect an appeal challenging that term of probation and the district court lacked jurisdiction to hear Volcek's appeal.
In Case No. A-06-569 the State filed a complaint charging Volcek with the violation of a number of city ordinances concerning maintenance of real property. On December 15, Volcek entered a plea of guilty on one count (littering) and the State dismissed the rest. Also on December 15, the county court sentenced Volcek to a term of 45 days' imprisonment, to be served consecutively with the sentence in case No. A-06-568. Volcek appealed to the district court which affirmed and Volcek then No. A-06-569 to the Nebraska Court of Appeals.
Did the county court impose and an excessive sentence when sentencing Volcek to 45 days in jail on a charge of littering? The Court said that the record presented on appeal did not include a copy of the ordinance under which Volcek was sentenced, and the complaint filed in county court does not include any substantive allegations concerning the appropriate sentencing range. As such, the Court was unable to review the sentence imposed. As an appellate court will not take judicial notice of the ordinance specifying the penalties for a violation unless the ordinance is made a part of the bill of exceptions or is included in the certified transcript prepared by the clerk of the county court and because it is incumbent upon the appellant to present a record which supports the errors assigned, absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.
Conclusion: The Court dismissed the appeal in case No. A-06-568 because Volcek failed to perfect a timely appeal from the sentencing order and affirmed the district court's decision upholding the sentence imposed in case No. A-06-569, because Volcek failed to include the applicable municipal ordinance in the record on appeal. APPEAL IN NO. A-06-568 DISMISSED. JUDGMENT IN NO. A-06-569 AFFIRMED.
Jeffrey L. Volcek brought these appeals from the district court's affirmance of the sentences imposed by the county court in two cases concerning Volcek's violation of city ordinances concerning maintenance of real property. In case No. A-06-568, Volcek attempted to challenge the county court's failure to waive a 45-day jail sentence imposed in a probation order. The Nebraska Court of Appeals found Volcek's appeal regarding this sentence to be untimely, and dismissed that appeal. In case No. A-06-569, Volcek challenged the county court's sentence of 45 days' imprisonment and the Court found no abuse of discretion and upheld the district court's affirmance of that sentence.
State v. Volcek, 15 Neb. App. 416 (2007)
Court of Appeals Headnotes
Criminal Law:
[Sentences:] Judgments. In a criminal case, the judgment is the sentence.
Constitutional Law:
[Statutes:] (Jurisdiction: Time: Appeal and Error.) The appellate jurisdiction of a court is contingent upon timely compliance with constitutional or statutory methods of appeal.
Sentences:
[Probation and Parole:] (Waiver: Final Orders: Appeal and Error.) Sentencing orders in which a defendant is sentenced to probation with one term of probation's being a jail term that may or may not ultimately be waived by the court are final, appealable orders.
Convictions:
[Ordinances:] (Sentences: Judicial Notice: Appeal and Error.) When considering an assignment of error claiming the imposition of an excessive sentence upon a conviction based on a municipal ordinance, an appellate court will not take judicial notice of the ordinance specifying the penalties for a violation unless the ordinance is made a part of the bill of exceptions or is included in the certified transcript prepared by the clerk of the county court.
Records:
[Appeal and Error.] It is incumbent upon the appellant to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.
[Ordinances:] (Appeal and Error.) Where no ordinance which specifies the penalties for a violation is in the record to review, the appellate courts do not address excessive sentence assignments of error.
Date Filed and Case No.: March 13, 2007. Nos. A-06-568, A-06-569.
Court Appealed From: Appeal from the District Court for Douglas County, J. Patrick Mullen, Judge, on appeal thereto from the County Court for Douglas County, Lawrence Barrett, Judge.
Attorneys for the Appeal: Jeff T. Courtney for Jeffrey L. Volcek, appellant. Paul D. Kratz, Martin J. Conboy III and J. Michael Tesar for State of Nebraska , appellee.
Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.
Authored By: Irwin, Judge.
Summary: In Case No. A-06-568 the State filed a complaint county charging Volcek with the violation of a number of city ordinances concerning maintenance of real property. On 08/25/05, Volcek entered pleas of guilty to two counts, the State dismissed the rest and the county court sentenced Volcek to a term of 6 months' probation containing a provision requiring Volcek to serve a term of 45 days' imprisonment to begin on 12/15/05 unless waived by the Court. The probation order also set a hearing date on December 15 for the purpose of determining whether said jail sentence should be waived. No appeal was taken from the probation order. At the conclusion of the December 15 hearing, the court declined to waive the jail sentence. Volcek appealed to the district court, which affirmed and Volcek appealed to the Nebraska Court of Appeals.
Did Volcek timely appeal the sentence imposed in case No. A-06-568? In a criminal case, the judgment is the sentence and appellate jurisdiction of a court is contingent upon timely compliance with constitutional or statutory methods of appeal. It is clear that in Nebraska, sentencing orders in which a defendant is sentenced to probation with one term of probation's being a jail term that may or may not ultimately be waived by the court are final, appealable orders. As such, the county court order sentencing Volcek to probation was a final, appealable order from which no appeal was taken. "Inasmuch as the probation order itself was a final, appealable order, it is apparent that the county court's later decision not to waive the term of incarceration is not itself an appealable order" ruled the Court. "First, we note that there is no authority in this state for allowing an appeal from a court's ultimate determination of whether to waive a jail term imposed as a term of probation. Second, we note that a court's determination not to waive such a jail term does not affect a substantial right and does not fit within any of the three types of final, appealable orders set forth in § 25-1902." Because Volcek failed to appeal from the sentencing order which first imposed the jail term as a term of probation, he Court found that Volcek failed to timely perfect an appeal challenging that term of probation and the district court lacked jurisdiction to hear Volcek's appeal.
In Case No. A-06-569 the State filed a complaint charging Volcek with the violation of a number of city ordinances concerning maintenance of real property. On December 15, Volcek entered a plea of guilty on one count (littering) and the State dismissed the rest. Also on December 15, the county court sentenced Volcek to a term of 45 days' imprisonment, to be served consecutively with the sentence in case No. A-06-568. Volcek appealed to the district court which affirmed and Volcek then No. A-06-569 to the Nebraska Court of Appeals.
Did the county court impose and an excessive sentence when sentencing Volcek to 45 days in jail on a charge of littering? The Court said that the record presented on appeal did not include a copy of the ordinance under which Volcek was sentenced, and the complaint filed in county court does not include any substantive allegations concerning the appropriate sentencing range. As such, the Court was unable to review the sentence imposed. As an appellate court will not take judicial notice of the ordinance specifying the penalties for a violation unless the ordinance is made a part of the bill of exceptions or is included in the certified transcript prepared by the clerk of the county court and because it is incumbent upon the appellant to present a record which supports the errors assigned, absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.
Conclusion: The Court dismissed the appeal in case No. A-06-568 because Volcek failed to perfect a timely appeal from the sentencing order and affirmed the district court's decision upholding the sentence imposed in case No. A-06-569, because Volcek failed to include the applicable municipal ordinance in the record on appeal. APPEAL IN NO. A-06-568 DISMISSED. JUDGMENT IN NO. A-06-569 AFFIRMED.
Brian J. Atchison, after a jury trial was convicted of enticement of a child for sexual purposes through the use of a computer and sentenced to a period of incarceration of 2 to 4 years. Atchison has appealed to the Nebraska Court of Appeals. The Court held that (1) the evidence was sufficient to support his conviction, (2) evidence regarding an investigator’s background and training in computer crimes was admissible, (3) evidence concerning the investigator’s explanations of certain phrases and abbreviations in the online typed conversations or “chats” was admissible, (4) the videotape of the events leading up to Atchison’s arrest was admissible and not unfairly prejudicial, and (5) the sentence was not excessive.
State v. Atchison, 15 Neb. App. 422 (2007)
Court of Appeals Headnotes
Criminal Law:
1. [Convictions:] (Evidence: Appeal and Error.) When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
2. [Minors.] Pursuant to Neb. Rev. Stat. § 28-320.02 (Cum. Supp. 2004), a person is guilty of a Class IIIA felony where a person knowingly solicits, coaxes, entices, or lures (1) a child 16 years of age or younger or (2) a peace officer who is believed by such person to be a child 16 years of age or younger, by means of a computer as that term is defined in Neb. Rev. Stat. § 28-1343 (Reissue 1995), to engage in an act which would be in violation of Neb. Rev. Stat. §§ 28-319 (Reissue 1995), 28-320.01 (Cum. Supp. 2004), or 28-320(1) or (2) (Reissue 1995).
3. [Evidence.] Evidence in a criminal case is viewed and construed most favorably to the State.
Rules of Evidence:
1. Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admis-sibility of evidence is reviewed for an abuse of discretion. ••• The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial court’s decision regarding them will not be reversed absent an abuse of discretion.
2. Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ••• For purposes of the balancing test required by Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), unfair prejudice means an undue tendency to suggest a decision on an improper basis.
Trial:
1. [Words and Phrases.] Judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable.
2. [Evidence:] The admission of cumulative evidence rests within the discretion of the trial judge. (Appeal and Error.) A party is barred from asserting a different ground for his or her objection to the admission of evidence on appeal than was offered before the trier of fact. ••• The duty rests on the defendant to object at trial to the admission of evidence and to state the specific ground of the objection if the specific ground is not apparent from the context in which the objection was made. ••• Whether cumulative evidence constitutes reversible error depends upon the facts and circumstances of each case.
Sentences:
1. An abuse of discretion occurs when a sentencing court’s reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result. ••• In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. ••• The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. ••• In 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.
2. [Appeal and Error.] A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
Date Filed and Case No.: March 13, 2007. No. A-06-703.
Court Appealed From: Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge.
Attorneys for the Appeal: Dennis R. Keefe and Christopher Eickholt for Brian J. Atchison, appellant. Jon Bruning and George R. Love for State of Nebraska , appellee.
Judges: Irwin and Sievers, Judges.
Participating on Briefs: Inbody, Chief Judge
Authored By: Severs, Judge.
Summary: On 06/28/05, Edward Sexton, an investigator with the Lincoln Police Department, went “undercover” on the internet as a 15-year-old girl named "Tami” in an internet chat room. While he was in the chat room, “Tami” received an instant message from “Fat Lincoln Cock 4 the Ladies,” later identified as Atchison, who was approximately 26 years old at the time. Internet chat took place over the next couple of days and “Tami” identified herself as a 15-year-old and Atchison indicated that he wanted to meet her and have sexual relations. At approximately noon on 07/07/05, Officer Tracy Graham was contacted by Investigator Sexton. Officer Graham is approximately 5 feet 4 inches tall and weighs 115 pounds and was to become “Tami” (Graham was 29 years old at that time). Officer Graham met Atchison at an agreed-upon location. Graham wore a “wire”, Atchison made contact with her and was arrested. An information was filed alleging that Atchison:
Did knowingly solicit, coax, entice, or lure a peace officer who is believed by such person to be a child sixteen (16) years of age or younger, by means of a computer as that term is defined in § 28-1343, to engage in an act which would be in violation of § 28-319 or § 28.320.01 or subsection (1) or (2) of §28-320.
A jury trial was held during which Sexton and Graham testified. Atchison testified that he never looked at “Tami’s” profile and that when he chatted with “Tami” on July 7, he did not remember that she was 15 years old. The jury found Atchison guilty and the district court sentenced him to 2 to 4 years’ imprisonment. Atchison appealed to ther Nebraska Court of Appeals.
(1) Was the evidence insufficient to support a conviction? Atchison alleged that on July 7 he had forgotten that “Tami” had said she was 15 years old in the internet discussions. Viewing the evidence at trial most favorably to the prosecution in the opinion the Court laid out the facts which it found that that the jury could have used to find Atchison guilty beyond a reasonable doubt of enticement of a child for sexual purposes through the use of a computer. “The evidence was such that the jury could easily reject the defense that he had forgotten that Tami was 15 years old. “
(2) Did the district court err in allowing into evidence:
An implication that Investigator Sexton is an expert in the field of computers is “unfairly prejudicial” to Atchison? Sexton testified that in 1996, he received his first training in investigating crime on the Internet, and that he has continued to receive training in computer crimes, data recovery, and undercover work posing as a child on the Internet, as well as searching hard drives and investigating Internet crimes against children. While Atchison objected on numerous occasions to such testimony on relevancy grounds, all of which were overruled, Atchison did not object on any other ground. The Court found that the district court did not abuse its discretion in allowing testimony about Sexton’s background and training in computer crimes when the crime charged required the use of a computer and the evidence necessitated an understanding of computer files, data recovery, and online chat rooms as well as instant messaging.
Sexton’s comments on contents of verbatim printouts of online chats properly admitted? In this case, Atchison’s counsel noted his objection to any question that the State would ask pertaining to the verbatim printouts of the online chats (which were published to the jury via an overhead projector), and it appeared that he was granted a continuing objection of sorts. However, whatever evidentiary grounds Atchison was relying on to support his objection were not clearly stated. Nevertheless, the record suggested that the basis was probably that each printout “speaks for itself.” But, the fact was that portions of the printouts required explanation for those unfamiliar with online chats, and the Court found that Sexton was clearly qualified to provide those explanations. “Thus, the implied grounds for the objection were, in any event, without merit.”
Videotape of Atchison’s contact with Officer Graham? Atchison objected on the grounds that the videotape was not relevant, was cumulative, and was prejudicial. The district court received the videotape with the restriction that only the meeting and not the subsequent arrest would be shown to the jury. The Court said the videotape shows Atchison’s intent to connect with the 15-year-old girl whom he believed he had chatted with online earlier and to whom he had written sexually explicit messages. The videotape provided visual corroboration of the online chats and established that Atchison’s calling out to and walking with Tami was no accident. The evidence was relevant to the case and while it might well have been prejudicial to Atchison’s defense, it cannot be said that it was unfairly so. As the admission of cumulative evidence rests within the discretion of the trial judge, Atchison’s argument is really that the State introduced “too much” evidence of his crime, “which argument we reject” said the Court.
Was the sentence imposed excessive? While the sentence was within statutory limits, Atchison argued that the district court did not give proper weight and consideration to the factors set forth in State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001) (in imposing sentence, sentencing judge should consider 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 offense, nature of offense, and amount of violence involved in commission of crime). In particular, Atchison argues that the district court did not give proper consideration to his serious motorcycle accident and his resulting disabling injury, which caused him to become “‘ distant’” from his family. To the contrary, the Court found that the record demonstrated that the district court specifically considered Atchison’s accident and head trauma, as well as his psychological evaluation and that the head trauma exacerbated a history of conduct and personality disorders. As such the Court found that the district court did not abuse its discretion.
Conclusion: The Court concluded that the jury could in fact find Atchison guilty beyond a reasonable doubt of enticement of a child for sexual purposes through the use of a computer. They further found no merit to Atchison’s evidentiary assignments of error or his allegation that his sentence was excessive. AFFIRMED.
Criminal Law, Solicitation of Minor by Means of a Computer, Evidence
Brian J. Atchison, after a jury trial was convicted of enticement of a child for sexual purposes through the use of a computer and sentenced to a period of incarceration of 2 to 4 years. Atchison has appealed to the Nebraska Court of Appeals. The Court held that (1) the evidence was sufficient to support his conviction, (2) evidence regarding an investigator’s background and training in computer crimes was admissible, (3) evidence concerning the investigator’s explanations of certain phrases and abbreviations in the online typed conversations or “chats” was admissible, (4) the videotape of the events leading up to Atchison’s arrest was admissible and not unfairly prejudicial, and (5) the sentence was not excessive.
State v. Atchison, 15 Neb. App. 422 (2007)
Court of Appeals Headnotes
Criminal Law:
1. [Convictions:] (Evidence: Appeal and Error.) When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
2. [Minors.] Pursuant to Neb. Rev. Stat. § 28-320.02 (Cum. Supp. 2004), a person is guilty of a Class IIIA felony where a person knowingly solicits, coaxes, entices, or lures (1) a child 16 years of age or younger or (2) a peace officer who is believed by such person to be a child 16 years of age or younger, by means of a computer as that term is defined in Neb. Rev. Stat. § 28-1343 (Reissue 1995), to engage in an act which would be in violation of Neb. Rev. Stat. §§ 28-319 (Reissue 1995), 28-320.01 (Cum. Supp. 2004), or 28-320(1) or (2) (Reissue 1995).
3. [Evidence.] Evidence in a criminal case is viewed and construed most favorably to the State.
Rules of Evidence:
1. Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admis-sibility of evidence is reviewed for an abuse of discretion. ••• The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial court’s decision regarding them will not be reversed absent an abuse of discretion.
2. Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ••• For purposes of the balancing test required by Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), unfair prejudice means an undue tendency to suggest a decision on an improper basis.
Trial:
1. [Words and Phrases.] Judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable.
2. [Evidence:] The admission of cumulative evidence rests within the discretion of the trial judge. (Appeal and Error.) A party is barred from asserting a different ground for his or her objection to the admission of evidence on appeal than was offered before the trier of fact. ••• The duty rests on the defendant to object at trial to the admission of evidence and to state the specific ground of the objection if the specific ground is not apparent from the context in which the objection was made. ••• Whether cumulative evidence constitutes reversible error depends upon the facts and circumstances of each case.
Sentences:
1. An abuse of discretion occurs when a sentencing court’s reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result. ••• In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. ••• The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. ••• In 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.
2. [Appeal and Error.] A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
Date Filed and Case No.: March 13, 2007. No. A-06-703.
Court Appealed From: Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge.
Attorneys for the Appeal: Dennis R. Keefe and Christopher Eickholt for Brian J. Atchison, appellant. Jon Bruning and George R. Love for State of Nebraska , appellee.
Judges: Irwin and Sievers, Judges.
Participating on Briefs: Inbody, Chief Judge
Authored By: Severs, Judge.
Summary: On 06/28/05, Edward Sexton, an investigator with the Lincoln Police Department, went “undercover” on the internet as a 15-year-old girl named "Tami” in an internet chat room. While he was in the chat room, “Tami” received an instant message from “Fat Lincoln Cock 4 the Ladies,” later identified as Atchison, who was approximately 26 years old at the time. Internet chat took place over the next couple of days and “Tami” identified herself as a 15-year-old and Atchison indicated that he wanted to meet her and have sexual relations. At approximately noon on 07/07/05, Officer Tracy Graham was contacted by Investigator Sexton. Officer Graham is approximately 5 feet 4 inches tall and weighs 115 pounds and was to become “Tami” (Graham was 29 years old at that time). Officer Graham met Atchison at an agreed-upon location. Graham wore a “wire”, Atchison made contact with her and was arrested. An information was filed alleging that Atchison:
Did knowingly solicit, coax, entice, or lure a peace officer who is believed by such person to be a child sixteen (16) years of age or younger, by means of a computer as that term is defined in § 28-1343, to engage in an act which would be in violation of § 28-319 or § 28.320.01 or subsection (1) or (2) of §28-320.
A jury trial was held during which Sexton and Graham testified. Atchison testified that he never looked at “Tami’s” profile and that when he chatted with “Tami” on July 7, he did not remember that she was 15 years old. The jury found Atchison guilty and the district court sentenced him to 2 to 4 years’ imprisonment. Atchison appealed to ther Nebraska Court of Appeals.
(1) Was the evidence insufficient to support a conviction? Atchison alleged that on July 7 he had forgotten that “Tami” had said she was 15 years old in the internet discussions. Viewing the evidence at trial most favorably to the prosecution in the opinion the Court laid out the facts which it found that that the jury could have used to find Atchison guilty beyond a reasonable doubt of enticement of a child for sexual purposes through the use of a computer. “The evidence was such that the jury could easily reject the defense that he had forgotten that Tami was 15 years old. “
(2) Did the district court err in allowing into evidence:
An implication that Investigator Sexton is an expert in the field of computers is “unfairly prejudicial” to Atchison? Sexton testified that in 1996, he received his first training in investigating crime on the Internet, and that he has continued to receive training in computer crimes, data recovery, and undercover work posing as a child on the Internet, as well as searching hard drives and investigating Internet crimes against children. While Atchison objected on numerous occasions to such testimony on relevancy grounds, all of which were overruled, Atchison did not object on any other ground. The Court found that the district court did not abuse its discretion in allowing testimony about Sexton’s background and training in computer crimes when the crime charged required the use of a computer and the evidence necessitated an understanding of computer files, data recovery, and online chat rooms as well as instant messaging.
Sexton’s comments on contents of verbatim printouts of online chats properly admitted? In this case, Atchison’s counsel noted his objection to any question that the State would ask pertaining to the verbatim printouts of the online chats (which were published to the jury via an overhead projector), and it appeared that he was granted a continuing objection of sorts. However, whatever evidentiary grounds Atchison was relying on to support his objection were not clearly stated. Nevertheless, the record suggested that the basis was probably that each printout “speaks for itself.” But, the fact was that portions of the printouts required explanation for those unfamiliar with online chats, and the Court found that Sexton was clearly qualified to provide those explanations. “Thus, the implied grounds for the objection were, in any event, without merit.”
Videotape of Atchison’s contact with Officer Graham? Atchison objected on the grounds that the videotape was not relevant, was cumulative, and was prejudicial. The district court received the videotape with the restriction that only the meeting and not the subsequent arrest would be shown to the jury. The Court said the videotape shows Atchison’s intent to connect with the 15-year-old girl whom he believed he had chatted with online earlier and to whom he had written sexually explicit messages. The videotape provided visual corroboration of the online chats and established that Atchison’s calling out to and walking with Tami was no accident. The evidence was relevant to the case and while it might well have been prejudicial to Atchison’s defense, it cannot be said that it was unfairly so. As the admission of cumulative evidence rests within the discretion of the trial judge, Atchison’s argument is really that the State introduced “too much” evidence of his crime, “which argument we reject” said the Court.
Was the sentence imposed excessive? While the sentence was within statutory limits, Atchison argued that the district court did not give proper weight and consideration to the factors set forth in State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001) (in imposing sentence, sentencing judge should consider 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 offense, nature of offense, and amount of violence involved in commission of crime). In particular, Atchison argues that the district court did not give proper consideration to his serious motorcycle accident and his resulting disabling injury, which caused him to become “‘ distant’” from his family. To the contrary, the Court found that the record demonstrated that the district court specifically considered Atchison’s accident and head trauma, as well as his psychological evaluation and that the head trauma exacerbated a history of conduct and personality disorders. As such the Court found that the district court did not abuse its discretion.
Conclusion: The Court concluded that the jury could in fact find Atchison guilty beyond a reasonable doubt of enticement of a child for sexual purposes through the use of a computer. They further found no merit to Atchison’s evidentiary assignments of error or his allegation that his sentence was excessive. AFFIRMED.
The Nebraska Department of Health and Human Services (DHHS) appealed from an order of the juvenile review panel which affirmed a dispositional order entered by a county court, sitting as a juvenile court. The juvenile court declined DHHS’ request that the court terminate its jurisdiction over the juvenile and entered a dispositional order implementing various goals and requiring various services, including the juvenile’s enrollment and attendance in an “age-appropriate sex offender therapy program.” On appeal, DHHS challenges both the juvenile court’s decision not to terminate jurisdiction and the court’s inclusion of the requirement of sex offender therapy in the court’s dispositional order.
In re Interest of Vincent P., 15 Neb. App. 437 (2007)
Court of Appeals Headnotes
Juvenile Courts:
1. [Minors.] The purpose of the juvenile code is to assure the rights of all juveniles to care and protection and a safe and stable living environment and to development of their capacities for a healthy personality, physical well-being, and useful citizenship and to protect the public interest. ••• The Nebraska Juvenile Code must be liberally construed to accomplish its purpose of serving the best interests of juveniles who fall within it.
2. [Parent and Child.] Once there has been the adjudication that a child is a juvenile within the meaning of the Nebraska Juvenile Code, the foremost purpose or objective of the Nebraska Juvenile Code is promotion and protection of a juvenile’s best interests, with preservation of the juvenile’s familial relationship with his or her parent(s) where continuation of such parental relationship is proper under the law.
Date Filed and Case No.: March 13, 2007. No. A-06-786.
Court Appealed From: Juvenile Review Panel, Curtis L. Maschman, Edward D. Steenburg, and Curtis H. Evans, Judges, on appeal thereto from the County Court for Cedar County, Douglas Luebe, Judge.
Attorneys for the Appeal: Jon Bruning and Gail Steen for Nebraska Department of Health and Human Services, appellant. George L. Hirschbach for State of Nebraska, appellee.
Judges: Irwin and Sievers, Judges, and Hannon, Judge, Retired.
Not Participating: Inbody, Chief Judge
Authored By: Irwin, Judge.
Summary: On 05/13/05 the juvenile court entered an order adjudicating Vincent P. under Neb. Rev. Stat. § 43-247(3)(a). Vincent’s adjudication involved an allegation that Vincent had sexually assaulted a 5-year-old boy by placing Vincent’s penis in the victim’s “buns.” Vincent denied the allegation, but the court found that beyond a reasonable doubt, the allegation was true. The adjudication was affirmed by the Nebraska Court of Appeals, In re Interest of Vincent P., 14 Neb. App.___(No. A-05-694, Jan. 6, 2006).
At the dispositional hearing the juvenile court received several exhibits offered by the State recommending termination of the juvenile court’s jurisdiction. However there were some inconsistencies in the DHHS recommendations and the expert testimony proffered as to Vincent’s risk to reoffend should jurisdiction be terminated . The juvenile court entered a dispositional order holding that by preponderance of the evidence, the case plan was disapproved and that it was not in the best interests of Vincent. The court specifically noted that the evidence supporting termination of jurisdiction was all premised on Vincent’s continued denial of the accusation that led to adjudication and on evaluators’ “supposition” of if Vincent did what was alleged in the petition. The court found most persuasive the portion of one psychological evaluation where it was indicated that continued participation in individual or family therapy “could continue to monitor [Vincent] for signs of problematic sexual boundary concerns and other areas related to sexual abuse.” As such, the court declined to terminate jurisdiction. In the dispositional order, the court ordered Vincent to enroll in an age-appropriate sex offender therapy program and ordered a termination of one of the psychologist’s participation in Vincent’s therapy because of a “preconceived bias attitude exhibited by [her].” DHHS filed a request for review by a juvenile review panel which affirmed the juvenile court’s decision. This appeal to the Nebraska Court of Appeals followed.
Did the juvenile court err in failing to adopt DHHS’ recommendation that terminating jurisdiction over Vincent was in Vincent’s best interests? The Court found that contrary to DHHS’ assertions that there was no evidence presented to rebut the expert testimony, here, there was such evidence. Although DHHS pointed to the first psychological evaluation as evidence that Vincent is not at risk to reoffend, the Court noted that that evaluation was actually completed prior to the adjudication. In the more recent evaluation, conducted by the psychologist just prior to the disposition, the doctor specifically indicated that Vincent is at risk for sexually offending once again, if it is assumed that he is guilty of the offense which led to adjudication. DHHS further argued that the failure to terminate jurisdiction in this case amounted to punishing Vincent “for exercising his rights against self-incrimination.” Although the doctor cited Vincent’s failure to admit or take responsibility for the sexual assault that led to adjudication, the juvenile court’s refusal to terminate jurisdiction in this case is not comparable to punishing Vincent for exercising his rights against self-incrimination. Finally, the Court found no merit to DHHS’ assertion that the conditions which led to Vincent’s adjudication have been resolved. Although the record indicated that Vincent has been participating in therapy, the record also specifically indicated that Vincent would benefit from continued therapy and supervision. “As such, we find no merit to any of DHHS’ arguments or to this assignment of error.”
Did the juvenile court err in ordering sex offender specific therapy for Vincent? The Court could not find that the juvenile court’s disposition in this case was an abuse of discretion. “We are unaware of any authority which supports the suggestion that ordering age-appropriate sex offender therapy for a juvenile who was adjudicated as having sexually assaulted a 5-year-old boy is an abuse of discretion.” The Court found that recommending sex offender therapy for an adjudicated sex offender is not an abuse of discretion.
Did the juvenile court err in ordering that therapy with a specific phytologist cease? The Court found no abuse of discretion by the court in ordering that Vincent’s therapy with a named psychologist be terminated. The record contained two letters from the doctor, where she expressed an inability to understand why Vincent was “a State Ward.” “We do not find an abuse of discretion in the court’s conclusion that such an inability to understand that an adjudicated sex offender should be under the jurisdiction of the juvenile court merited ending Vincent’s treatment with her.”
Conclusion: The Court found no merit to DHHS’ assertions that the juvenile court should have terminated jurisdiction instead of entering an initial dispositional order concerning Vincent, who was adjudicated as having sexually assaulted a 5-year-old boy. AFFIRMED.
Parties to a modification of a dissolution proceeding appeal and cross-appeal an order of the district court which awarded appellant sole custody of the parties’ minor children, established visitation rights for appellee, and established appellee’s child support obligation. On appeal, appellant challenged the district court’s visitation order, child support order, and failure to award attorney fees. On cross-appeal, appellee challenged the district court’s award of custody, visitation order, and child support order. The Nebraska Court of Appeals found that the district court’s child support calculations were not supported by the evidence, and remanded for a new calculation of child support. However they found no abuse of discretion with regard to the remaining assertions of error.
Noss v. Noss (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Appeal and Error: Dissolution:
1. [Visitation:] 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. See 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 refrain 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.
2. [Child Support:] An appellate court reviews a trial court’s calculation of child support de novo on the record to determine whether there has been an abuse of discretion by the trial judge. See Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). Before determining a parent’s child support obligation, there must be a determination regarding the monthly incomes of the custodial and noncustodial parents. Id. The Nebraska Child Support Guidelines offer flexibility and guidance, with the understanding that not every child support scenario will fit neatly into the calculation structure. Gress v. Gress, supra.
3. [Attorney Fees:] In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case. Id. Evidence concerning the time required for preparation and trial of the case and customary charges is needed to meaningfully review an award of attorney fees. Id.
Date Filed and Case No.: March 13, 2007. No. A-06-279.
Court Appealed From: District Court for Sarpy County: William B. Zastera, Judge.
Attorneys for the Appeal: Steven M. Delaney and Tessa P. Hermanson for Jenifer S. Noss, appellant. Thomas Blount for Michael G. Noss, appellee.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: In 1998, the district court entered a decree dissolving the marriage of Jenifer S. Noss and Michael G. Noss, awarding the parties joint custody of the parties’ two minor children. In 2001, the court entered an order modifying the decree changing the custody order to an award of joint legal custody, with physical custody awarded to Jenifer. In January 2004, Michael voluntarily moved from Papillion, Nebraska, to Overland Park, Kansas. On 12/10/04, Jenifer filed an application to modify, alleging that there had been a material change of circumstances because of communication problems with Michael about issues concerning the health, education, and welfare of the children. Jenifer alleged that the best interests of the children were no longer being served by the joint custody arrangement. Jenifer also requested an appropriate child support award and attorney fees. Michael denied Jenifer’s assertions of material change of circumstances and resisted modification of the existing custody, visitation, and support order. Michael cross-applied for modification, seeking to have the court order Jenifer to provide transportation necessary to facilitate his visitation with the children or contribute to the cost of such transportation. Following a trial, the district court modified the prior custody order, holding that there was a material change of circumstances and found that the acrimony between the parties prevented the viability of continuing joint custody. The court awarded sole custody of the children to Jenifer, modified the existing visitation schedule and entered a new child support order. The court made no ruling concerning attorney fees. Jenifer’s appeal and Michael’s cross-appeal to the Nebraska Court of Appeals followed. On appeal, Jenifer challenged the district court’s visitation order, child support order, and failure to award attorney fees. On cross-appeal, Michael challenged the district court’s award of custody, visitation order, and child support order.
Did the district court err in its visitation order? The Court found that although Michael’s move and the breakdown in communication between the parties supported a determination that joint custody is no longer viable, and although the change in circumstances made the prior visitation schedule no longer viable, the record supported a finding that Michael should be allowed to continue exercising a liberal weekend visitation schedule awarded by the court.
Did the district court err in its child support calculation? Jenifer argued that the court erred in five respects: using an incorrect income figure for Michael, using incorrect tax deductions for Michael, incorrectly giving Michael a deduction for health insurance, incorrectly computing the retirement deductions for both parties, and deviating from the guidelines to provide Michael a reduction in child support to offset travel expenses. The Court said there was no evidence in the record which would support the court’s use of a monthly gross income figure of $5,780 for Michael and Michael made no argument on appeal to support the use of such number. Because the record did not support the numbers used by the court to reflect Michael’s monthly income or the numbers used to calculate Michael’s monthly federal or state tax deductions, the Court found an abuse of discretion by the trial court. As such, the Court remanded the matter to the district court for a new child support calculation. “As a result of this conclusion, we find no need to further discuss Jenifer’s assertions concerning alleged errors in the court’s child support calculation or retroactive application of the new support obligation.”
Did the district court err in not awarding her attorney fees? In this case, the court’s final order made no mention of Jenifer’s request for attorney fees, which the Court interpreted as a denial of the request. While evidence indicated that both parties incurred attorney fees associated with this action (Michael included an itemization thereof), neither party presented any evidence concerning the reasonableness of the fees or costs or the customary charges of the bar. The Court found no abuse of discretion by the court in failing to award Jenifer attorney fees.
In his cross-appeal, Michael asserted that the district court erred in modifying the previous custody order, in modifying his visitation, and in modifying his child support obligation. Was there error by the district court? The evidence in this case indicated that the parties have experienced a breakdown in communication and that the acrimony between the parties has made the previous joint custody award no longer viable. Both parties testified about the breakdown in communication, including communication concerning the children. The Court found no abuse of discretion by the court in concluding that custody needed to be modified or in finding that Jenifer should be awarded sole custody.
Conclusion: The Court found that the case must be remanded to the district court for a new calculation of Michael’s child support obligation. “The evidence presented at trial did not support the income or tax deduction amounts used by the court.” On all other issues they found no abuse of discretion. AFFIRMED IN PART, AND IN PART REMANDED FOR FURTHER PROCEEDINGS.
Parties to a modification of a dissolution proceeding appeal and cross-appeal an order of the district court which awarded appellant sole custody of the parties’ minor children, established visitation rights for appellee, and established appellee’s child support obligation. On appeal, appellant challenged the district court’s visitation order, child support order, and failure to award attorney fees. On cross-appeal, appellee challenged the district court’s award of custody, visitation order, and child support order. The Nebraska Court of Appeals found that the district court’s child support calculations were not supported by the evidence, and remanded for a new calculation of child support. However they found no abuse of discretion with regard to the remaining assertions of error.
Noss v. Noss (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Appeal and Error: Dissolution:
1. [Visitation:] 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. See 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 refrain 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.
2. [Child Support:] An appellate court reviews a trial court’s calculation of child support de novo on the record to determine whether there has been an abuse of discretion by the trial judge. See Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). Before determining a parent’s child support obligation, there must be a determination regarding the monthly incomes of the custodial and noncustodial parents. Id. The Nebraska Child Support Guidelines offer flexibility and guidance, with the understanding that not every child support scenario will fit neatly into the calculation structure. Gress v. Gress, supra.
3. [Attorney Fees:] In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case. Id. Evidence concerning the time required for preparation and trial of the case and customary charges is needed to meaningfully review an award of attorney fees. Id.
Date Filed and Case No.: March 13, 2007. No. A-06-279.
Court Appealed From: District Court for Sarpy County: William B. Zastera, Judge.
Attorneys for the Appeal: Steven M. Delaney and Tessa P. Hermanson for Jenifer S. Noss, appellant. Thomas Blount for Michael G. Noss, appellee.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: In 1998, the district court entered a decree dissolving the marriage of Jenifer S. Noss and Michael G. Noss, awarding the parties joint custody of the parties’ two minor children. In 2001, the court entered an order modifying the decree changing the custody order to an award of joint legal custody, with physical custody awarded to Jenifer. In January 2004, Michael voluntarily moved from Papillion, Nebraska, to Overland Park, Kansas. On 12/10/04, Jenifer filed an application to modify, alleging that there had been a material change of circumstances because of communication problems with Michael about issues concerning the health, education, and welfare of the children. Jenifer alleged that the best interests of the children were no longer being served by the joint custody arrangement. Jenifer also requested an appropriate child support award and attorney fees. Michael denied Jenifer’s assertions of material change of circumstances and resisted modification of the existing custody, visitation, and support order. Michael cross-applied for modification, seeking to have the court order Jenifer to provide transportation necessary to facilitate his visitation with the children or contribute to the cost of such transportation. Following a trial, the district court modified the prior custody order, holding that there was a material change of circumstances and found that the acrimony between the parties prevented the viability of continuing joint custody. The court awarded sole custody of the children to Jenifer, modified the existing visitation schedule and entered a new child support order. The court made no ruling concerning attorney fees. Jenifer’s appeal and Michael’s cross-appeal to the Nebraska Court of Appeals followed. On appeal, Jenifer challenged the district court’s visitation order, child support order, and failure to award attorney fees. On cross-appeal, Michael challenged the district court’s award of custody, visitation order, and child support order.
Did the district court err in its visitation order? The Court found that although Michael’s move and the breakdown in communication between the parties supported a determination that joint custody is no longer viable, and although the change in circumstances made the prior visitation schedule no longer viable, the record supported a finding that Michael should be allowed to continue exercising a liberal weekend visitation schedule awarded by the court.
Did the district court err in its child support calculation? Jenifer argued that the court erred in five respects: using an incorrect income figure for Michael, using incorrect tax deductions for Michael, incorrectly giving Michael a deduction for health insurance, incorrectly computing the retirement deductions for both parties, and deviating from the guidelines to provide Michael a reduction in child support to offset travel expenses. The Court said there was no evidence in the record which would support the court’s use of a monthly gross income figure of $5,780 for Michael and Michael made no argument on appeal to support the use of such number. Because the record did not support the numbers used by the court to reflect Michael’s monthly income or the numbers used to calculate Michael’s monthly federal or state tax deductions, the Court found an abuse of discretion by the trial court. As such, the Court remanded the matter to the district court for a new child support calculation. “As a result of this conclusion, we find no need to further discuss Jenifer’s assertions concerning alleged errors in the court’s child support calculation or retroactive application of the new support obligation.”
Did the district court err in not awarding her attorney fees? In this case, the court’s final order made no mention of Jenifer’s request for attorney fees, which the Court interpreted as a denial of the request. While evidence indicated that both parties incurred attorney fees associated with this action (Michael included an itemization thereof), neither party presented any evidence concerning the reasonableness of the fees or costs or the customary charges of the bar. The Court found no abuse of discretion by the court in failing to award Jenifer attorney fees.
In his cross-appeal, Michael asserted that the district court erred in modifying the previous custody order, in modifying his visitation, and in modifying his child support obligation. Was there error by the district court? The evidence in this case indicated that the parties have experienced a breakdown in communication and that the acrimony between the parties has made the previous joint custody award no longer viable. Both parties testified about the breakdown in communication, including communication concerning the children. The Court found no abuse of discretion by the court in concluding that custody needed to be modified or in finding that Jenifer should be awarded sole custody.
Conclusion: The Court found that the case must be remanded to the district court for a new calculation of Michael’s child support obligation. “The evidence presented at trial did not support the income or tax deduction amounts used by the court.” On all other issues they found no abuse of discretion. AFFIRMED IN PART, AND IN PART REMANDED FOR FURTHER PROCEEDINGS.
The Nebraska Department of Health and Human Services (DHHS) appealed from an order of the juvenile review panel which affirmed a dispositional order entered by a county court, sitting as a juvenile court. The juvenile court declined DHHS’ request that the court terminate its jurisdiction over the juvenile and entered a dispositional order implementing various goals and requiring various services, including the juvenile’s enrollment and attendance in an “age-appropriate sex offender therapy program.” On appeal, DHHS challenges both the juvenile court’s decision not to terminate jurisdiction and the court’s inclusion of the requirement of sex offender therapy in the court’s dispositional order.
In re Interest of Vincent P., 15 Neb. App. 437 (2007)
Court of Appeals Headnotes
Juvenile Courts:
1. [Minors.] The purpose of the juvenile code is to assure the rights of all juveniles to care and protection and a safe and stable living environment and to development of their capacities for a healthy personality, physical well-being, and useful citizenship and to protect the public interest. ••• The Nebraska Juvenile Code must be liberally construed to accomplish its purpose of serving the best interests of juveniles who fall within it.
2. [Parent and Child.] Once there has been the adjudication that a child is a juvenile within the meaning of the Nebraska Juvenile Code, the foremost purpose or objective of the Nebraska Juvenile Code is promotion and protection of a juvenile’s best interests, with preservation of the juvenile’s familial relationship with his or her parent(s) where continuation of such parental relationship is proper under the law.
Date Filed and Case No.: March 13, 2007. No. A-06-786.
Court Appealed From: Juvenile Review Panel, Curtis L. Maschman, Edward D. Steenburg, and Curtis H. Evans, Judges, on appeal thereto from the County Court for Cedar County, Douglas Luebe, Judge.
Attorneys for the Appeal: Jon Bruning and Gail Steen for Nebraska Department of Health and Human Services, appellant. George L. Hirschbach for State of Nebraska, appellee.
Judges: Irwin and Sievers, Judges, and Hannon, Judge, Retired.
Not Participating: Inbody, Chief Judge
Authored By: Irwin, Judge.
Summary: On 05/13/05 the juvenile court entered an order adjudicating Vincent P. under Neb. Rev. Stat. § 43-247(3)(a). Vincent’s adjudication involved an allegation that Vincent had sexually assaulted a 5-year-old boy by placing Vincent’s penis in the victim’s “buns.” Vincent denied the allegation, but the court found that beyond a reasonable doubt, the allegation was true. The adjudication was affirmed by the Nebraska Court of Appeals, In re Interest of Vincent P., 14 Neb. App.___(No. A-05-694, Jan. 6, 2006).
At the dispositional hearing the juvenile court received several exhibits offered by the State recommending termination of the juvenile court’s jurisdiction. However there were some inconsistencies in the DHHS recommendations and the expert testimony proffered as to Vincent’s risk to reoffend should jurisdiction be terminated . The juvenile court entered a dispositional order holding that by preponderance of the evidence, the case plan was disapproved and that it was not in the best interests of Vincent. The court specifically noted that the evidence supporting termination of jurisdiction was all premised on Vincent’s continued denial of the accusation that led to adjudication and on evaluators’ “supposition” of if Vincent did what was alleged in the petition. The court found most persuasive the portion of one psychological evaluation where it was indicated that continued participation in individual or family therapy “could continue to monitor [Vincent] for signs of problematic sexual boundary concerns and other areas related to sexual abuse.” As such, the court declined to terminate jurisdiction. In the dispositional order, the court ordered Vincent to enroll in an age-appropriate sex offender therapy program and ordered a termination of one of the psychologist’s participation in Vincent’s therapy because of a “preconceived bias attitude exhibited by [her].” DHHS filed a request for review by a juvenile review panel which affirmed the juvenile court’s decision. This appeal to the Nebraska Court of Appeals followed.
Did the juvenile court err in failing to adopt DHHS’ recommendation that terminating jurisdiction over Vincent was in Vincent’s best interests? The Court found that contrary to DHHS’ assertions that there was no evidence presented to rebut the expert testimony, here, there was such evidence. Although DHHS pointed to the first psychological evaluation as evidence that Vincent is not at risk to reoffend, the Court noted that that evaluation was actually completed prior to the adjudication. In the more recent evaluation, conducted by the psychologist just prior to the disposition, the doctor specifically indicated that Vincent is at risk for sexually offending once again, if it is assumed that he is guilty of the offense which led to adjudication. DHHS further argued that the failure to terminate jurisdiction in this case amounted to punishing Vincent “for exercising his rights against self-incrimination.” Although the doctor cited Vincent’s failure to admit or take responsibility for the sexual assault that led to adjudication, the juvenile court’s refusal to terminate jurisdiction in this case is not comparable to punishing Vincent for exercising his rights against self-incrimination. Finally, the Court found no merit to DHHS’ assertion that the conditions which led to Vincent’s adjudication have been resolved. Although the record indicated that Vincent has been participating in therapy, the record also specifically indicated that Vincent would benefit from continued therapy and supervision. “As such, we find no merit to any of DHHS’ arguments or to this assignment of error.”
Did the juvenile court err in ordering sex offender specific therapy for Vincent? The Court could not find that the juvenile court’s disposition in this case was an abuse of discretion. “We are unaware of any authority which supports the suggestion that ordering age-appropriate sex offender therapy for a juvenile who was adjudicated as having sexually assaulted a 5-year-old boy is an abuse of discretion.” The Court found that recommending sex offender therapy for an adjudicated sex offender is not an abuse of discretion.
Did the juvenile court err in ordering that therapy with a specific phytologist cease? The Court found no abuse of discretion by the court in ordering that Vincent’s therapy with a named psychologist be terminated. The record contained two letters from the doctor, where she expressed an inability to understand why Vincent was “a State Ward.” “We do not find an abuse of discretion in the court’s conclusion that such an inability to understand that an adjudicated sex offender should be under the jurisdiction of the juvenile court merited ending Vincent’s treatment with her.”
Conclusion: The Court found no merit to DHHS’ assertions that the juvenile court should have terminated jurisdiction instead of entering an initial dispositional order concerning Vincent, who was adjudicated as having sexually assaulted a 5-year-old boy. AFFIRMED.
In this appeal, a child’s mother appeals an order of the district court granting the child’s father custody of the parties’ minor child (the parties were not married.) On appeal, the mother alleged that the court erred in granting the father custody, because he did not request custody in any pleading, because the court unduly emphasized the mother’s move from Omaha to Lincoln as a basis for the award, and because the custody award resulted in the child’s being separated from a half sibling. The Nebraska Court of Appeals found no abuse of discretion by the court, and affirmed.
State on behalf of Schlautman-Sudik v. Schlautman (Not Designated for Permanent Publication)
ELaw Headnotes (Not Prepared by Court)
Pleadings:
1. As a general rule, a judgment must respond to the pleadings; a judgment based upon an issue not pled is a nullity. I.P. Homeowners v. Morrow, 12 Neb. App. 119, 668 N.W.2d 515 (2003). ••• A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Id. See, also, Krause v. Crossley, 202 Neb. 806, 277 N.W.2d 242 (1979). ••• When a court enters a judgment or awards relief beyond the prayer of the complaint or the scope of its allegations, the excessive relief is void for want of jurisdiction. I.P. Homeowners v. Morrow, supra. The pleadings frame the issues upon which the case is to be tried and advise the adversary as to what he or she must meet. Keenan Packaging Supply v. McDermott, 13 Neb. App. 710, 700 N.W.2d 645 (2005). The issues in a given case will be limited to those which are pled. Id.
Child Custody:
1. When custody of a minor child is an issue, child custody is determined by parental fitness and the child’s best interests. See, Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). (dissolution of marriage proceeding); Spence v. Bush, 13 Neb. App. 890, 703 N.W.2d 606 (2005) (paternity proceeding). When both parents are found to be fit, the inquiry for the court is the best interests of the children. Gress v. Gress, supra. In determining the best interests of the child in a custody determination, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (2) the desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (3) the general health, welfare, and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family or household member. § 42-364(2); Gress v. Gress, supra.
2. [Appeal and Error:] Child custody 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. Gress v. Gress, supra.
Date Filed and Case No.: March 13, 2007. No. A-06-385.
Court Appealed From: District Court for Douglas County: Marlon A. Polk, Judge.
Attorneys for the Appeal: Lyle Joseph Koenig for Diana L. Sudik, third-party defendant, appellant. Matthew Stuart Higgins for Michael J. Schlautman, defendant and third-party plaintiff, appellee.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Irwin, Judge.
Summary: The numerous court proceedings which finally led to this appeal were set out in the opinion and culminated in a hearing on a petition filed by the child’s mother Diana L. Sudik. Suffice it to say the matter was initiated by the State to set paternity and support, which led to actions by Sudik and answers and cross-petitions by the child’s father, Michael J. Schlautman all of which were consolidated by the district court. The matter culminated in a hearing and the evidence indicated that after sharing custody of the child in Omaha, Sudik moved from Omaha to Lincoln in June 2005, where she was living on a full-time basis with her fiance; the minor; and Sudik’s older child, the minor’s half sibling, and on a part-time basis with two of her fiance’s children. Sudik acknowledged that the principal reason for her move to Lincoln was her fiance. The evidence indicated that Schlautman was living in Omaha. Both parties asserted that the joint custody arrangement was no longer working. The court entered an order finding both parties to be “excellent” parents and found that the minor’s best interests were the determining factor in resolving the issues presented. The court held that joint custody was no longer feasible. The court also noted that the primary complicating factor that made joint custody no longer workable was Sudik’s move from Omaha to Lincoln. The court specifically noted the factors to consider in a best interests analysis pursuant to Neb. Rev. Stat. § 42-364 (Reissue 2004). The court concluded that the minor’s best interests would be served by placing the minor in the sole legal and physical custody of Schlautman. The court also made specific awards concerning visitation and child support. Sudik filed a motion for new trial, which was denied and this appeal to the Nebraska Court of Appeals followed.
Did the district court err in granting Schlautman custody?
1. Should the district court have granted Schlautman custody, because he failed to affirmatively request custody in his pleading? The Court found that Sudik misconstrues the law, and the issue of to whom custody should be awarded was placed squarely before the court in the pleadings. In this case, the issue of permanent custody, an issue that had not previously been resolved by any court order or decree, was placed in issue by Sudik herself. Sudik pled that she should be awarded custody of the minor and that such would be in the minor’s best interests, and Schlautman denied Sudik’s assertions. At trial, both parties litigated the issue of custody and presented testimony requesting custody of the minor. As such, we find no merit to Sudik’s first argument.
2. Did the district court err in granting Schlautman custody on the basis of her move to Lincoln? The Court said the record in this case indicates two fit parents. The minor is too young to express an opinion on custody, and there is no evidence of misconduct on the part of either parent. “Indeed, the evidence indicates that the parties were able to conduct a joint custody arrangement and equally share in parenting responsibilities when Sudik lived in Omaha” they said. The evidence also indic
