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Here, a Nebraska district court determined that under the Uniform Interstate Family Support Act (UIFSA) it had the authority to modify a New Mexico divorce decree to extend the duration of child support, measured by the age of majority, from age 18 (New Mexico) to age 19 (Nebraska). The Nebraska Court of Appeals determined that the court erred in statutory interpretation, and modified the judgment to preserve the original duration of support.
Wills v. Wills, 16 Neb. App. 559 (2008)
Court of Appeals Headnotes
Statutes:
1. A court must look to a statute’s purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.
2. Judgments: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.
3. Child Support. Under Neb. Rev. Stat. § 42-746(d) (Reissue 2004), the law of the state which issued the initial controlling order governs the duration of the obligation of support.
Courts:
1. Statutes: Intent. An appellate court properly looks to the official comments contained in a model act on which a Nebraska statute or series of statutes was patterned for some guidance in an effort to ascertain the intent of the legislation.
Date Filed and Case No.: March 11, 2008. No. A-06-1161.
Court Appealed From: District Court for Frontier County: David Urbom, Judge.
Attorneys for the Appeal: James C. Bocott for Russell C Wills, appellant. No appearance for Vivian F. Wills, appellee.
Judges: Inbody, Chief Judge, and Irwin and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On July 10, 1992, a district court for New Mexico dissolved the marriage between Russell and Vivian L. Wills. Pursuant to the divorce decree, Vivian was awarded “primary physical custody” of the parties’ three minor children and Russell was ordered to pay child support until the minor children married, reached the age of majority, or otherwise became emancipated. The age of majority in New Mexico at the time of the decree was 18 years of age. At some point after the entry of the New Mexico decree, the parties and their minor children moved to Nebraska. In March 2006, Vivian registered the New Mexico decree in a Nebraska district and filed a motion to modify the amount of the child support obligation for the two younger children, who were born in November 1988, asserting a material change in circumstances in that Russell’s disposable income had increased. Based on stipulated facts, the district court determined that under the Uniform Interstate Family Support Act (UIFSA) it had the authority to modify a New Mexico divorce decree to extend the duration of child support, measured by the age of majority, from age 18 (New Mexico) to age 19 (Nebraska). The court extended the child support owed by Russell C. Wills by 1 year. Russell appealed to the Nebraska Court of Appeals.
Did the district court err in modifying the duration of child support under the UIFSA because the duration of child support was determined by the age of majority and was nonmodifiable under the laws of both states? The Court said that the specific question presented in this appeal is whether the Nebraska court, the registering tribunal under UIFSA, has authority to modify the duration of child support determined by the New Mexico court as the issuing tribunal. The district court here, focused on the language in § 42-747.01 (b) directing the court to apply Nebraska substantive law. Russell, however, emphasizes the listed sections and contends that § 42-747.01(b) also requires the court to apply § 42-746(c) (shall not modify any aspect of a child support order that cannot be modified under the law of the issuing state, including the duration of the obligation of support) and (d) (In a proceeding to modify a child support order, the law of the state that issued the initial order governs the duration.) The Court looked to the official comments contained in the model act which the UIFSA was patterned after, dicta in a Nebraska case with similarities (Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999)) and the statute’s purpose (giving the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.) After reviewing those sources, the Court said that in light of the history of 1996 and 2001 amendments to UIFSA, “the purpose of the statute is clear.” Section 42-746(d) declares that the law of the state which issued the initial controlling order governs the duration of the obligation of support. As New Mexico issued the initial controlling order, its law governs the duration of Russell’s support obligation and the district court erred in extending Russell’s child support by the additional year.
Conclusion: Under the 1996 and 2001 amendments to UIFSA, the law of New Mexico governs the duration of Russell’s support obligation. To the extent that the district court’s order of modification purported to change the duration of support, it is modified to conform to the provision of the original New Mexico decree continuing child support until the children were 18. AFFIRMED AS MODIFIED.
Motion to Alter or Amend Judgment, Tolling Time Judgments
After a decree of dissolution goes through a number of motions to alter or amend, resulting in three judgments, the Nebraska Court of Appeals goes through the chronology of the motions, the tolling periods they had on the time to appeal and determined that they had jurisdiction to review the case.
Gebhardt v. Gebhardt, 16 Neb. App. 565 (2008)
Court of Appeals Headnotes
Jurisdiction:
1. Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. ••• Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue of jurisdiction sua sponte.
Pleadings:
1. Judgments:
a. Time. Neb. Rev. Stat. § 25-1329 (Cum. Supp. 2006) requires the filing of a motion to alter or amend no later than 10 days after the entry of the judgment. ••• In order to be a tolling motion, a motion to alter or amend must seek substantive alteration of the judgment.
i. Appeal and Error. Under Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2006), a motion to alter or amend timely filed terminates the running of the time for filing a notice of appeal as to all parties. ••• Successive motions to alter or amend do not toll the time to appeal; however, motions to alter or amend are not “successive” when they were timely filed after the court substantially altered the judgment, giving the parties a statutory right to seek alteration or amendment of the “new judgment” in the trial court before appealing to an appellate court.
Judgments:
1. Final Orders: Words and Phrases. According to Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2006), a judgment is the final determination of the rights of the parties in an action; to be final, an order must dispose of the whole merits of the case and leave nothing for further consideration of the court, and thus the order is final when no further action of the court is required to dispose of the pending cause.
Divorce:
1. Property Division: In dissolution matters, property divisions are not subject to a rigid mathematical formula and the division must, most of all, be reasonable.
a. Appeal and Error. An appellate court reviews a dissolution case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Such standard also applies to the trial court’s determinations regarding the division of property.
Evidence:
1. Appeal and Error. In a de novo review, an appellate court reappraises the evidence in the record and reaches its own independent conclusions. ••• Where the evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
Judges:
1. Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
Appeal and Error.
1. An issue not properly presented to and passed upon by the trial court may not be raised on appeal.
Date Filed and Case No.: March 11, 2008. No. A-07-102.
Court Appealed From: District Court for Greeley County: Ronald D. Olberding and Mark D. Kozisek, Judges.
Attorneys for the Appeal: Gregory G. Jensen for Rhonda L. Gebhardt, appellant. Barry D. Geweke for John O. Gebhardt, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Severs, Judge.
Summary: Rhonda L. Gebhardt and John O. Gebhardt were divorced by a decree of dissolution of marriage entered on May 1, 2006, by then District Judge Ronald D. Olberding in the district court for Greeley County, Nebraska. Judge Olberding retired effective April 30. Following the entry of decree, there was a motion for a new trial on May 3 and a ruling thereupon on August 10 by District Judge Mark D. Kozisek. Thereafter, there were a series of motions to alter or amend judgment, rulings thereupon, and finally Rhonda’s notice of appeal, which was filed January 23, 2007. These procedural occurrences raised jurisdictional issues to the Nebraska Court of Appeals.
What was the tolling effect of a motion to alter or amend? The Court said that this appeal raised this issue along with the effect of successive motions to alter or amend, and ultimately which actions of the trial court are subject to appellate review.
Both parties referenced Mason v. Cannon, 246 Neb. 14, 516 N.W.2d 250 (1994), for two fundamental propositions: (1) An untimely motion for new trial is ineffectual and does not toll the time for perfection of an appeal, nor does it extend or suspend the time limit for filing such appeal, and (2) the filing of a motion for new trial and its subsequent overruling do not convert an otherwise unappealable order into an appealable order. However, the Court pointed out that Mason was decided before the operative date (April 16, 2004) of the statute providing for the filing of a motion to alter or amend. That statute, Neb. Rev. Stat. § 25-1329 requires the filing of such a motion no later than “ten days after the entry of the judgment” and, under Neb. Rev. Stat. § 25-1912(3) such a motion terminates the running of the time for filing a notice of appeal “as to all parties.” In order to be a tolling motion, the Court noted that a motion to alter or amend must seek substantive alteration of the judgment.
The Court said that Mason is instructive but not determinative of the result in this case, because it did not involve a motion to alter or amend and, most important, the trial court in Mason took no action which altered or changed the judgment between the two motions for new trial filed by Mason. Thereafter, the opinion set out the procedural events of this case:
1. May 1: The initial entry of the decree of dissolution of May 1, 2006, by Judge Olberding. (A final order, Judgment #1.)
2. May 3: Rhonda’s motion for new trial. (Time to appeal is tolled.)
3. August 10: the district court rules on Rhonda’s motion and substantially altered the judgment in her favor and against John. (Thus, a new judgment, Judgment #2.)
4. Within 10 days of August 10: John filed a motion to alter or amend the order modifying decree as Judgment #2. Additionally, John's motion asserted Judgment #1 failed to give him credit for a cash inheritance and that with said credit, no property settlement judgment against him was warranted. (Time to appeal is tolled.)
5. October 10: Rhonda files a Cross Motion to Alter or Amend Order Modifying Decree. (Ruled out of time and a nullity.)
6. November 14: The trial court rules on John’s motion to alter or amend, removing Rhonda’s credit for inherited property (Judgement #1) and eliminating Judgment #2 this time to Rhonda’s disadvantage. (Thereby becoming Judgment #3.)
7. November 22: Rhonda moves again to alter or amend the judgment. (Again qualifies as tolling motion.)
8. December 28: Rhonda’s motion denied with no change in Judgment #3. (A final, appealable order.)
9. January 23, 2007, Rhonda files appeal to the Nebraska Court of Appeals.
Therefore, the Court determined that they had jurisdiction of this appeal to conduct appellate review of the final judgment entered in this divorce case.
The Court pointed out that If Rhonda, instead of filing a notice of appeal within 30 days of December 28, 2006, would have filed another motion to alter or amend attacking the trial court’s decision of November 14, the principles of Mason v. Cannon, would apply. Because, at that point, she would have filed successive motions to alter or amend the same judgment. However, in this case, her various motions to alter or amend were not “successive” in the sense condemned in Mason. While successive motions to alter or amend would not toll the time to appeal under the reasoning of Mason, the motions to alter or amend in this case were not “successive,” because they were timely filed after the court substantially altered the judgment, giving the parties a statutory right to seek alteration or amendment of the “new judgment” in the trial court before appealing.
Conclusion: Because successive and material changes were made to the decree of dissolution, the motions to alter or amend that were filed within 10 days of the “change orders” tolled the time to appeal to the Court. Accordingly, they had jurisdiction over Rhonda’s appeal. “However,” they found “none of her assignments of error have merit.”
In this case, the Nebraska Court of Appeals finds that a district court’s decision to exclude an expert witness, who the did not satisfy the Daubert/Schafersman requirements for expert testimony was not an abuse of discretion.
King v. Burlington Northern Santa Fe Ry. Co., 16 Neb. App. 544 (2008)
Court of Appeals Headnotes
Federal Acts:
1. Railroads: Claims: Courts: Jurisdiction. Courts of the United States and courts of the several states have concurrent jurisdiction over claims controlled by the Federal Employers' Liability Act.
2. Claims: Courts. In disposing of a claim controlled by the Federal Employers’ Liability Act, a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the act, but substantive issues concerning a claim under the Federal Employers' Liability Act are determined by the provisions of the act and interpretative decisions of the federal courts construing the Federal Employers’ Liability Act.
Jurisdiction.
1. Unlike substantive issues, procedural matters are governed by the law of the forum.
Rules of Evidence.
1. In proceedings where the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.
Trial:
1. Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving or excluding an expert’s testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.
2. Courts: Expert Witnesses. Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion.
Judgments:
1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Courts:
1. Expert Witnesses. In determining the admissibility of an expert’s testimony, a trial court may consider nonexclusive criteria in evaluating the reliability of a particular theory to include (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error; (4) whether there are standards controlling the technique’s operation; and (5) whether the theory or technique enjoys general acceptance within the relevant scientific community.
Physicians and Surgeons.
1. In performing a differential diagnosis, a physician begins by “ruling in” all scientifically plausible causes of the patient’s injury. The physician then “rules out” the least plausible causes of injury until the most likely cause remains.
Summary Judgment:
1. Motions for Continuance: Appeal and Error. A continuance authorized by Neb. Rev. Stat. § 25-1335 (Reissue 1995) is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.
Date Filed and Case No.: March 11, 2008. No. A-05-1520.
Court Appealed From: District Court for Douglas County: W. Mark Ashford, Judge.
Attorneys for the Appeal: Richard J. Dinsmore and Jayson D. Nelson for Vicki King , Special Administratrix of the Estate of Badley B. King, deceased, appellant. Nichole S. Bogen and James A. Snowden for Burlington Northern Santa Fe Railway Company, a Delaware Corporation, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Moore, Judge.
Summary: This is a Federal Employers’ Liability Act (FELA) case brought in the district court in which Bradley B. King claimed that he contracted multiple myeloma due to his exposure to diesel exhaust during his 28-year employment with the Burlington Northern and Santa Fe Railway Company (BNSF). As King died on April 9, 2002, the matter was revived in the name of his wife, Vicki King (also referred to as“King”). On June 22, 2005, BNSF filed a motion in limine and for summary judgment. BNSF sought exclusion of King’s expert witness, Dr. Arthur Frank, alleging that Frank was unqualified to render an opinion as to the cause of King’s multiple myeloma because his opinion was based on subjective beliefs and unsupported speculation without basis in scientific standards and was based on insufficient facts or data in contravention of the standard for admissibility of expert testimony.
At the hearing on BNSF’s motion two depositions of King, a deposition of Frank, a deposition of BNSF’s expert, and numerous medical articles relied on by the parties’ experts, were received in evidence. King offered the testimony of Frank to support the allegation that King’s exposure to diesel exhaust while working for BNSF was the cause of King’s multiple myeloma. BNSF offered the expert testimony of a different doctor, who opined that diesel exhaust does not cause multiple myeloma. Specifically, BNSF argued that neither the medical or scientific community nor any medical or scientific literature supported Frank’s opinion. After reviewing the evidence, briefs, and arguments of the parties, the district court concluded that Frank should be excluded from testifying and granted BNSF’s motion in limine. Subsequently, the court granted BNSF’s motion for summary judgment and denyied King’s motion for additional time to designate expert witnesses. The district court found that BNSF had satisfied its burden of adducing evidence demonstrating that there was no causal connection between King’s employment, including his exposure to diesel exhaust, and his subsequent development of multiple myeloma. King appealed and the Nebraska Court of Appeals wrote the opinion.
Did the district court erred in excluding Frank’s testimony? In evaluating the court’s ruling on BNSF’s motion in limine, the Court employed an abuse of discretion standard, to determine whether there was sufficient evidence presented to allow Frank to opine that exposure to diesel exhaust was the cause of King’s multiple myeloma.
Here, the district court found no question that Frank was eminently qualified to give expert medical testimony. However, the court found that Frank’s opinion was not based on reliable methodology and, thus, excluded Frank from testifying for King. The district court observed that Frank’s methodology in reaching his conclusion (exposure to diesel exhaust is a risk factor in causing multiple myeloma) was specifically rejected by one court applying the same Daubert standards to determine admissibility of expert testimony. See Missouri Pacific R. Co. v. Navarro, 90 S.W.3d 747 (Tex. App. 2002).
The district court here noted that a federal circuit court of appeals applying the Daubert standard recently rejected expert opinion testimony based on methodology similar to that employed by Frank. Here, the district court observed that Frank pointed to numerous studies, some of which dealt with exposure to diesel exhaust or benzene and to multiple myeloma, yet he could not point to a single study that conclusively stated that exposure to diesel exhaust or benzene causes multiple myeloma. “In short,” wrote the Court “the district court found that Frank’s opinion was not reliable because his opinion was based on his own subjective conclusions and flawed methodology, because no medical or scientific study had concluded that diesel exhaust exposure causes multiple myeloma, and because the underlying methodology of Frank’s opinion was unreliable. It concluded that his testimony was thus not admissible under the Nebraska Evidence Rules and expert testimony reliability standards established in (Daubert and Schafersman)”
Further, under the Daubert/Schafersman framework, the question is whether the expert had a reasonable basis for concluding that one of the plausible causative agents was the most likely culprit for the patient’s symptoms (a reliable “differential diagnosis”). Here, the district court found no evidence that Frank considered any other potential causes of King’s multiple myeloma. Why those potential causes were eliminated and why King’s exposure to diesel exhaust is the most probable cause. The district court determined that Frank’s differential diagnosis was not reliable. Frank did not state why he “ ‘ruled out’” any other potential causes, but merely concluded that diesel exhaust exposure was most probable, even though no medical or scientific study authorizes such a conclusion. Here, the district court concluded that although differential diagnosis is a generally accepted methodology, Frank had not performed a reliable differential diagnosis.
“Having reviewed the record, including the district court’s well-reasoned opinion and Frank’s deposition testimony, and the relevant case law,” the Court found no abuse of discretion in the district court’s decision to grant BNSF’s motion in limine and exclude Frank’s testimony.
Did the district court err in failing to allow King to obtain other expert testimony after disallowing Frank’s testimony? At the hearing on BNSF’s motion for summary judgment, which occurred subsequently to the hearings on the motion in limine and issuance of the district court’s ruling thereon, the court indicated that it had just received King’s motion for additional time. “In essence,” said the Court “King sought a continuance of the summary judgment hearing.” They wrote that the case had been at issue for quite some time by the time of the hearings and the record did not contain a copy of King’s motion for additional time, and there was nothing in the bill of exceptions for the hearing to indicate that King had identified any possible experts other than Frank who might testify as to the causation of King’s multiple myeloma. The initial hearing on BNSF’s motion in limine and motion for summary judgment was held months before the ruling. As such, the possible need for an additional expert witness in the event that BNSF prevailed on the motion in limine would have been apparent at that time. The Court found no abuse of discretion in the court’s denial of King’s motion.
Conclusion: The Court found that the district court did not abuse its discretion in granting the motion in limine to exclude Frank’s testimony or in denying King’s motion for additional time to designate expert witnesses. AFFIRMED.
