Here, on a petition
for further review, the Nebraska Supreme Court reverses the Nebraska
Court of Appeals’ affirmance of a Workers’ Compensation
Court Review Panel decision. The Court ruled that under current
Nebraska law, a compensable injury caused by an occupational disease
must involve some physical stimulus constituting violence to the
physical structure of the body. Ultimately the Court sided with
the trial court which dismissed a workers’ compensation claim,
where the claimant alleged that a State Trooper’s suicide was
connected to the bank robbery in Norfolk which he felt he might
have been able to prevent.
Zach
v. Nebraska State Patrol, 273 Neb. 1 (2007)
Supreme
Court Headnotes
Pleadings:
- [Appeal
and Error.] An appellate court reviews de novo a lower court's
dismissal of a complaint for failure to state a claim. •••
When analyzing a lower court's dismissal of a complaint for failure
to state a claim, an appellate court accepts the complaint's factual
allegations as true and construes them in the light most favorable
to the plaintiff.
Statutes:
- [Judgments:]
(Appeal and Error.) the meaning of a statute is 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.
Workers'
Compensation:
- [Jurisdiction:]
(Statutes.) as a statutorily created court, the Workers' compensation
court is a tribunal of limited and special jurisdiction and has
only such authority as has been conferred on it by statute.
Statutes:
- A court must
attempt to give effect to all parts of a statute, and if itcan be
avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
- [Appeal
and Error.] statutory language is to be given its plain and
ordinary meaning. an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
Workers'
Compensation:
- [Proof.]
A compensable injury caused by an occupational disease must involve
some physical stimulus constituting violence to the physical structure
of the body.
Date Filed
and Case No.: February 2, 2007. No. S-05-449.
Court Appealed
From: Petition for further review from the Nebraska Court of
Appeals, Inbody, Chief Judge, and Carlson and Cassel, Judges, on
appeal thereto from the Nebraska Workers' Compensation Court.
Attorneys
for the Appeal: Jon Bruning and Lisa D. Martin-Price for Nebraska
State Patrol, appellant. Terry M. Anderson and Steven M. Lathrop
for Loree Zach et al., appellees. Jeffry D. Patterson for amicus
curiae Nebraska Association of Trial Attorneys. Dallas D. Jones
and Jenny L. Panko for amici curiae Crete Carrier Corporation Et
al.
Summary:
Trooper Mark Zach of the Nebraska State Patrol died on 09/27/02,
as the result of a self-inflicted gunshot wound. His surviving spouse
and children (claimants) brought this action for death benefits
under the Nebraska Workers' Compensation Act. Claimants alleged
that while on patrol in Madison County, Nebraska, approximately
2 weeks prior to his death, Zach stopped several persons and discovered
that one of them was armed with a pistol. Zach communicated the
serial number of the weapon to a dispatcher, but due to miscommunication
or error, the weapon was not at that time identified as stolen.
Claimants alleged that the weapon and two of the individuals stopped
by Zach were subsequently involved in a bank robbery in Norfolk,
Nebraska, which resulted in multiple fatalities. Claimants alleged
that on the day following the robbery, Zach was advised by state
patrol officials that two of the persons he had stopped were involved
in the bank robbery; that weapons taken during a previous burglary
were used in the robbery; and that due to a miscommunication at
the time of the stop, there had been a failure to identify the pistol
used in the robbery as one of the weapons involved in the previous
burglary. Claimants alleged that upon learning this, Zach felt responsible
and became very distraught and alleged Zach suffered an "accident"
resulting in a "personal injury" inasmuch as the sudden
stimulus(i.e., being advised of the consequences of an error) caused
Zach's brain to undergo physical changes which, in turn, led Zach
to a state of mind which “overroad [sic] his will to the extent
that even knowledge of the consequences of the act of suicide did
not prevent Zach from taking his own life.” Claimants' Zach
suffered an "occupationaldisease" inasmuch as the exposure
to the stress of his employment resulted in an identifiable mental
disease which disease,in turn, led Zach to suicide.
The trial judge
of the workers' compensation court granted the Nebraska State Patrol's
motion to dismiss, concluding that claimants had failed to state
a claim upon which relief could be granted. The judge interpreted
Nebraska case law as requiring some physical stimulus before work-related
mental stress can be a compensable injury, as the result of either
an accident or an occupational disease. A review panel of the workers'
compensation court reversed, interpreting Tarvin v. Mutual of
Omaha Ins. Co., 238 Neb. 851, 472 N.W.2d 727 (1991), to require
trial of any workers' compensation claim, so it remanded the case
for trial. The Nebraska State Patrol appealed and in a two-to-one
opinion, the Nebraska Court of Appeals affirmed. (Zach v. Nebraska
State Patrol, 14 Neb. App. 579, 710 N.W.2d 877 (2006)) agreeing
with the review panel's interpretation of Tarvin. The dissent
did not read Tarvin to hold that a biochemical alteration
of the brain constituted violence to the physical structure of the
body within the meaning of the Nebraska Workers' Compensation Act.
The Nebraska Supreme Court granted the petition for further review
filed by the Nebraska State Patrol.
The Court said
that the fact that suicide is alleged as the immediate cause of
Zach's death does not bar the claim because it is also alleged that
Zach experienced physical changes in his brain which overrode his
will to the extent that even knowledge of the consequences of the
act of suicide did not prevent it. “The critical query is whether
such changes and the resulting fatal consequence can constitute
a compensable injury under either an ‘accident’ or an
‘occupational disease’ theory, in view of the allegation
that they were caused by a mental stimulus, i.e., being advised
of the consequences of a work-related error.” Here, the trial
judge concluded that the underlying condition leading to Zach's
death was "mental stress" and that "whether it be
deemed from an 'accident' or an 'occupational disease' [it] must
be accompanied by a prior physical insult to the physical structure
of the body" under Bekelski v. Neal Co., 141 Neb. 657,
4 N.W.2d 741 (1942).
Because of its
remand, the review panel found it unnecessary to address the issue
of whether "one must show violence to the physical structure
of the body in order to recover for an occupational disease."
The Court of Appeals did not specifically address this issue. Because
the Nebraska Supreme Court concluded that injury caused by a mental
stimulus is not compensable as an injury caused by accident, it
had to address the alternative theory, that Zach sustained a compensable
injury as a result of an occupational disease. The first sentence
of § 48-151(4) defines the terms "injury" and "personal
injuries" without distinction as to cause, i.e., accident or
occupational disease. The use of the word "only" limits
the definition to disease or infection naturally resulting from
violence to the physical structure of the body. the second sentence
refers to the "terms" defined in the first sentence, i.e.,
"injury" and "personal injuries," and states
that they "include disablement resulting from occupational
disease." The Court said the plain meaning of the two sentences,
read together, is that disability due to occupational disease is
compensable only if it results from violence to the physical structure
of the body. “We conclude that under current Nebraska law,
a compensable injury caused by an occupational disease must involve
some physical stimulus constituting violence to the physical structure
of the body.” Because the injury in this case is alleged to
have resulted entirely from a mental stimulus, no claim is stated
for injury caused by occupational disease. For the reasons discussed
in the opinion, the Court concluded that the Court of Appeals erred
in affirming the judgment of the Review Panel which reversed the
order of dismissal entered by the trial judge. “We therefore
reverse the judgment of the court of appeals and remand the cause
to that court with directions to remand the matter to the review
panel with directions to affirm the order of dismissal entered by
the trial judge.” REVERSED AND REMANDED WITH DIRECTIONS.
In this appeal
to the Nebraska Supreme Court, the court determines that the appeal
was not taken from a final appealable order. Thus, the appeal was
dismissed
Pfeil
v. State, 273 Neb. 12 (2007)
Supreme
Court Headnotes
Jurisdiction:
- [Appeal
and Error.] A jurisdictional question which does not involve
factual dispute is determined by an appellate court as a matter
of law. Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it h a s
jurisdiction over the matter before it.
- [Final
Orders:] (Appeal and Error.) For an appellate court to acquire
jurisdiction of an appeal, t here must be an order entered by the
court from which the appeal is taken; conversely, an appellate court
is without jurisdiction to entertain appeals from non final orders.
Final Orders:
- [Appeal
and Error.] An order is final for the purposes of appeal if
it affects a substantial right and (1) determines the action and
prevents a judgment (2) is made during a special proceeding, or
(3) is made on summary application in an act ion after judgment
is rendered
Actions:
- [Judgments:]
(Final Orders.) For the purposes of Neb. Rev. Stat. § 25-190
(Reissue 19), a special proceeding includes every special statutory
remedy which is not in it self an action. A judgment rendered by
the district court that is merely step or proceeding within the
overall action is not a special proceeding. A special proceeding
which affects a substantial right is, by definition, not part of
an action.
- [Statutes.]
A special proceeding, within the meaning of Neb. Rev. Stat §
25-1902 (Reissue 1995), entails civil statutory remedies not encompassed
in chapter 25 of the Nebraska Revised Statutes.
File No.
and Case No.: February 2 , 2007. No. S- 05-896.
Court Appealed
From: District Court for Cedar County: Robert V Burkhard, Judge.
Attorneys
and Parties: Earl G. Greene III for State of Nebraska, appellant.
Terry M. Anderson and Steven M. Lathrop for Christopher M. Pfeil,
appellee.
Summary:
Christopher M. Pfeil was injured in an accident with a snow
plow operated by an employee of the St ate of Nebraska. Pfei brought
suit under the State Tort Claims Act (Act), Neb. Rev. Stat §§
81-8,209 to 81-8,235 (Reissue 20 03). The State alleged as a affirmative
defense that Pfeil failed to comply with the presentment requirements
of the Act. The crux of the States argument is that the filing of
Pfeils suit in district court acted as a withdrawal of his claim
led on the same day with the State Claim Board (Board), and as a
result, the State was not given its statutorily permitted 6 months
to consider Pfeil's claim. The district court found Pfeil had complied
with t he Act. The State appealed to the Nebraska Supreme Courts.
As an initial
matter the Court considered whether the appeal was taken from a
final appealable order. Here, the District Court held a separate
trial on the issue if Pfeils compliance with the Act. The district
court concluded that Pfeil had complied with the act, finding that
the petition was not intended to withdraw Pfeils claim aga inst
the State. On 11/13/06 the Court issued an order to show cause why
this case should not be dismissed for a lack of jurisdiction, because
the District Court's order was not a final appealable order. In
its response, the state argued that this appeal of fax a substantial
right and was made during a special proceeding and is best appealable.
Re: Was this
order made in a special proceeding: The State argued that the
district courts order was made during a special proceeding because
Pfeils cause of action arose under the Act, which is codified in
chapter 81 and thus is encompassed in chapter 25 of the Nebraska
Revised Statutes. That Court said that this misrepresents the nature
of Chapter 81 of the Nebraska statutes. The intent of the Act was
to waive the States sovereign immunity, thus allowing the State
to be sued fo the torts of its officers, agents, or employees. They
recognized that some aspects of chapter 81 could be identified as
resembling a special proceeding but in this case, Pfiel has alleged
a negligence cause of action against the state. Beyond the presentment
and notice condition and precedents set forth in chapter 81, Pfeils
court action against the State follows the procedures set forth
in chapter 25 of the Nebraska Revised Statutes. "We therefore
conclude that Pfeil's action is and compassed by chapter 25, and
the district court's ordered denying the States affirmative defense
was not made in a special proceeding."
Conclusion:
Having concluded that the district court's order was not made during
a special proceeding, the Court concluded that the State's appeal
was not up from a final appealable order. As such, they Court lacked
jurisdiction to consider this appeal. APPEAL DISMISSED.
Attorney Discipline, Voluntary Surrender of License, Misappropriation
of Probate/Trust Funds
Here the Nebraska
Supreme Court accepts the voluntary surrender of respondent's license
to practice law in Nebraska, and orders her disbarred after some
$93,000 disappeared from a probate account she was administering.
State
ex Rel. Counsel for Dis. v. Williams, 273 Neb. 53 (2007)
Supreme
Court Headnotes
None
Date Filed
and Case No.: February 2, 2007. No. S-06-629.
Court Appealed
From: State of Nebraska ex rel. Counsel for Discipline of the
Nebraska Supreme Court, relator. Lavon Stennis Williams, respondent.
Attorneys
for the Appeal: Original action.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Not Participating:
Heavican, C.J.
Authored
By: Per Curiam.
Summary:
Respondent, Lavon Stennis Williams, was admitted to the practice
of law in the State of Nebraska on 09/25/91 and was engaged in the
private practice of law in Nebraska. Following a grievance, that
respondent had misappropriated client funds in the total amount
of approximately $93,000, led to a temporary suspension, formal
charges were filed by the Office of the Counsel for Discipline of
the Nebraska Supreme Court, relator, against respondent. The formal
charges generally alleged that in the fall of 2001, Robert H. Nelson
hired respondent to assist him with certain estate planning matters,
including the drafting of his will. Respondent prepared Robert's
will. In the executed will, Robert named his daughter, Robin Nelson,
as his sole beneficiary. Robert also nominated respondent to serve
as personal representative of his estate, without bond, and he authorized
respondent to employ herself as the attorney for the administration
of the estate for a fee not to exceed $3,500. Robert died on 02/07/02.
The formal charges alleged that respondent received a total of $233,584.23
for the benefit of Robert and his estate. On 08/30/02 respondent
opened an estate account, into which she deposited $93,539.59. As
of December 2004, the balance remaining in the estate account was
less than $100. Respondent was the only person authorized to make
withdrawals from the account. The formal charges further alleged
that despite repeated requests from Robin for an accounting of the
estate and a distribution of her inheritance, respondent failed
to provide the accounting or make any distributions to Robin. In
October and November 2005, respondent made certain representations
to Robin regarding sending distributions from the estate to Robin,
but Robin did not receive any funds from the estate.
According to
the formal charges, on 11/28/05, Robin filed the aforementioned
grievance against respondent with relator. On December 7, respondent
spoke with relator and stated that all of the money from the estate
had been given to Robin. Respondent stated that by December 14,
she would provide to relator the bank statements showing where the
money was maintained and how it was paid to Robin. Respondent did
not provide to relator the bank statements. In a letter dated January
5, 2006, respondent offered to pay Robin an unspecifed amount of
money if Robin would withdraw her grievance. The formal charges
further alleged that on 05/15/06, the county court for Douglas County
appointed a special administrator to investigate respondent's handling
of Robert's estate. On June 6, relator received from the special
administrator photocopies of documents indicating that respondent
had withdrawn a total of $93,590 from the estate account, and of
those withdrawn funds, over $50,000 had been withdrawn by checks
made payable to respondent.
On 12/22/06,
after a referee had been appointed to handle the case, voluntarily
surrendered her license and voluntarily consented to the entry of
an order of disbarment and waived her right to notice, appearance,
and hearing prior to the entry of the order of disbarment. Upon
due consideration of the court file in this matter, the Nebraska
Supreme Court accepted respondent's surrender of her license to
practice law, found that respondent should be disbarred, and hereby
ordered her disbarred from the practice of law in the State of Nebraska,
effective immediately. JUDGMENT OF DISBARMENT.
Attorney
Discipline, Voluntaty Surrender of License, Overdrawing of Attorney
Trust Account
For overdrawing
his attorney trust account, in action which he had done in the past,
the Nebraska Supreme Court accepted the voluntary surrender of this
attorney's license and ordered him disbarred.
State
ex Rel. Counsel for Dis. v. Taylor, 273 Neb. 57 (2007)
Supreme
Court Headnotes
None
Date Filed
and Case No.: February 2, 2007. No. S-06-1330.
Summary:
Respondent, John G. Taylor was admitted to the practice of law in
the State of Nebraska on 09/28/95 and was engaged in the private
practice of law in Nebraska. On 11/27/06 an application for the
temporary suspension of respondent from the practice of law was
filed by the chairperson of the Committee on Inquiry of the First
Disciplinary District. The application stated that respondent was
overdrawn on his attorney trust account in the amount of $4,340.55
and that he had in the past misappropriated client funds for his
personal use. The application further stated that respondent "is
engaging in conduct that, if allowed to continue until final disposition
of disciplinary proceedings, will cause serious damage to the public
and to the legal profession." On 01/10/07, respondent filed
with the Nebraska Supreme Court a voluntary surrender of his license.
In his voluntary surrender, respondent knowingly does not challenge
or contest the truth of the allegations in the application for temporary
suspension to the effect that he was overdrawn on his attorney trust
account and that he had misappropriated client funds. In addition
to surrendering his license, respondent voluntarily consented to
the entry of an order of disbarment and waived his right to notice,
appearance, and hearing prior to the entry of the order of disbarment.
Upon due consideration of the court file in this matter, the Court
found that respondent voluntarily has stated that he knowingly does
not challenge or contest the truth of the allegations in the application
for temporary suspension to the effect that he was overdrawn on
his attorney trust account and that he had misappropriated client
funds. The Court accepted respondent's surrender of his license,
found that he should be disbarred, and ordered him disbarred from
the practice of law in the State of Nebraska, effective immediately.
JUDGMENT OF DISBARMENT.
Attorney
Fees, Contracts, Void as Against Public Policy
In this opinion,
the Nebraska Supreme Court agrees with a district court that a contractual
provision for attorney fees, where such fees are not provided by
statute or uniform course of procedure, is against public policy
and will not be judicially enforced.
Stewart
v. Bennett, 273 Neb. 17 (2007)
Supreme
Court Headnotes
Supreme Court:
- [Appeal
and Error.] On questions of law, the Nebraska Supreme Court
is obligated to reach a conclusion independent of the decision by
the trial court.
Contracts:
- [Waiver.]
It is axiomatic that a party cannot waive the invalidity of a contractual
provision by entering into a contract containing such a provision.
- [Attorney
Fees:] (Public Policy.) In the absence of a uniform course of
procedure or authorization by statute, contractual agreements for
attorney fees are against public policy and will not be judicially
enforced.
- [Public
Policy.] Public policy presents the principles under which the
freedom of contract or private dealings are restricted by law for
the good of the community.
Estoppel.
- The doctrine
of judicial estoppel holds that one who has successfully and unequivocally
asserted a position in a prior proceeding is estopped from asserting
an inconsistent position in a subsequent proceeding. •••
Absent judicial acceptance of the inconsistent position, the application
of the rule of judicial estoppel is unwarranted because no risk
of inconsistent results exists.
Pleadings.
- A party cannot
judicially admit conclusions of law in the pleadings because the
pleadings admit only facts.
Statutes:
- [Legislature:]
(Presumptions.) The Legislature is presumed to know the general
condition surrounding the subject matter of the legislative enactment,
and it is presumed to know and contemplate the legal effect that
accompanies the language it employs to make effective the legislation.
Legislature:
- [Attorney
Fees:] (Public Policy.) In enacting Neb. Rev. Stat. § 25-824
(Reissue 1995), the Legislature has made a statement of public policy
against granting attorney fees in actions that are not frivolous.
Date Filed
and Case No.: February 2, 2007. No. S-05-1100.
Court Appealed
From: Appeal from the District Court for Dixon County: Patrick
G. Rogers, Judge.
Attorneys
for the Appeal: Lance D. Ehmcke, Joel D. Vos, and Jeremy J.
Cross for Darlene A. Bennett, Trustee of the Darlene A. Bennett
Revocable Trust, appellant. Thomas A. Fitch for Paul D. Stewart
and Beverly A. Stewart, appellees.
Summary:
This case presents an action originally brought by Paul D. Stewart
and Beverly A. Stewart to establish a holdover tenancy under the
terms and conditions of an expired lease agreement with the landowner,
Darlene A. Bennett, trustee of the Darlene A. Bennett Revocable
Trust. Bennett denied the existence of a holdover tenancy and counterclaimed
for liquidated damages as specified in the lease for failure to
relinquish possession. The district court found that under the undisputed
facts presented, no holdover tenancy was created and granted Bennett's
motion for summary judgment and dismissed the Stewarts' petition
against Bennett. Both parties originally sought attorney fees under
the lease. After the district court dismissed the Stewarts' petition,
but before ruling on Bennett's counterclaim, the Stewarts challenged
the validity of the attorney fee provision. Bennett responded that
the Stewarts were barred from asserting that the attorney fee provision
was against public policy, since they were the first party to ask
for attorney fees under the provision. Bennett also alleged that
any jurisprudence determining such provision to be against public
policy was unconstitutional.
Citing Parkert
v. Lindquist, 269 Neb. 394, 693 N.W.2d 529 (2005), and the cases
discussed therein, the district court denied attorney fees. The
court did not specifically address Bennett's argument that the rule
recognized in Parkert was unconstitutional. Bennett appealed and
the Nebraska Supreme Court issued an opinion.
Did the district
court err in failing to grant attorney fees to Bennett? Bennett
asked the Court to revisit its previously established rule that
a contractual provision for attorney fees, where such fees are not
provided by statute or uniform course of procedure, is against public
policy and will not be judicially enforced. (See Parkert v. Lindquist,
supra.) Alternatively, Bennett asserted that some form of equitable
defenses, i.e., the doctrines of unclean hands, waiver, and estoppel,
should operate to preclude recognition of the voidness of the fee
provision in this case. Finally, Bennett sought a declaration that
the Nebraska Supreme Court's case law on holdover tenancies is unconstitutional.
* •Is
the attorney fee provision at issue in this case invalid?
The Court declined to overrule the line of cases which clearly
holds that the attorney fee provision at issue in this case was
invalid.
* •Doctrines of Unclean Hands, Waiver, and Estoppel: The
Court ruled that the doctrines of unclean hands, waiver, and estoppel
clearly did not apply to the Stewarts' claim that the attorney
fee provision is invalid.
* •A
party cannot waive the invalidity of a contractual provision by
entering into a contract containing such a provision.
* •As
to the idea that by asking the court for fees under the provision,
equity precludes the Stewarts from later denying the validity
of the provision, there is no evidence that the Stewarts acted
inequitably, unfairly, or dishonestly in their initial claim for
attorney fees and there is not any evidence that the Stewarts
gained any benefit from their unsuccessful claim under the attorney
fee provision or that Bennett detrimentally relied on the Stewarts'
prior claim.
* •The
doctrine of judicial estoppel, which holds that one who has successfully
and unequivocally asserted a position in a prior proceeding is
estopped from asserting an inconsistent position in a subsequent
proceeding. The doctrine of judicial estoppel does not apply in
this case because the district court never accepted the claim
that the attorney fee provision was applicable. Absent judicial
acceptance of the inconsistent position, application of the rule
is unwarranted because no risk of inconsistent results exists.
* •A
party will be bound by allegations in the pleadings and cannot
subsequently take a position inconsistent thereto, as such allegations
are judicial admissions. However, a party cannot judicially admit
conclusions of law in the pleadings because the pleadings admit
only facts. The Stewarts' implicit allegation that the attorney
fee provision was valid was a conclusion of law.
* •Application
of the "American Rule:" Having concluded that the
Stewarts are not estopped from asserting that the attorney fee
provision at issue is invalid as against public policy, the Court
wrote there are some exceptions to the American rule, varying
from state to state. The opinion went on to note that the public
policy relevant to this case was embodied by an expression of
the Legislature, and could find no merit to Bennett's argument
that the case law recognizing this public policy violated the
alleged exclusive realm of the Legislature to determine public
policy questions. "We decline to reconsider our case law
on this issue."
Conclusion: The Court affirmed the judgment of the district
court. AFFIRMED.
In this appeal
of a district court's decision not to exercise jurisdiction over
an international custody case, invoking arguments under the Convention
on the Civil Aspects of International Child Abduction (Hague Convention)
and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
the Nebraska Supreme Court affirms the district court decision.
Susan
L. v. Steven L. 273 Neb. 24 (2007)
Supreme
Court Headnotes
Judgments:
- [Jurisdiction:]
(Appeal and Error.) When a jurisdictional question does not
involve a factual dispute, determination of the issue is a matter
of law which requires an appellate court to reach a conclusion independent
from that of the trial court.
Child Custody:
- [Kidnapping:]
(Jurisdiction: States.) The Convention on the Civil Aspects
of International Child Abduction seeks to establish procedures to
ensure a child's prompt return to the state of his or her "habitual
residence" where removed or retained therefrom. •••
The Convention on the Civil Aspects of International Child Abduction
is applicable to any child "habitually resident" in a
contracting state immediately before any breach of custody or access
rights. ••• The Convention on the Civil Aspects of
International Child Abduction does not seek to establish a child's
"habitual residence" as a general jurisdictional mandate
for custody disputes. ••• The Convention on the Civil
Aspects of International Child Abduction makes no statement as to
the relevancy of grave risk of harm in deciding jurisdiction or
the appropriate forum for resolution of custody issues involving
a child not wrongfully removed or retained. (States.) Under
the Convention on the Civil Aspects of International Child Abduction,
grave risk of harm is essentially an affirmative defense to the
return of the child.
- [Jurisdiction:]
(Statutes.) Neb. Rev. Stat. §§ 43-1230 and 43-1240
(Reissue 2004) do not deprive the district court of its broad and
general original jurisdiction over child custody.
Constitutional
Law:
- The fact that
the exercise of discretion will not be strictly homogeneous does
create a lack of uniformity in the constitutional sense.
- [Jurisdiction:]
The term "jurisdiction," as used in Neb. Const. art. V,
§ 9, denotes the concept of legal power to interpret and administer
the law in the premises. ••• The constitutional grant
of jurisdiction to the district court, while original, is not exclusive.
(Legislature.) The jurisdiction of the district courts conferred
by the terms of the Nebraska Constitution, as thus conferred, is
beyond the power of the Legislature to limit or control; while the
Legislature may grant to the district courts such other jurisdiction
as it may deem proper, it cannot limit or take away from such courts
their broad and general jurisdiction which the constitution has
conferred upon them.
- [Due Process.]
Due process as required by Neb. Const. art. I, § 3, need
not take place in Nebraska.
Courts:
- [Jurisdiction.]
Where courts have concurrent jurisdiction, the first to assume
jurisdiction retains it to the exclusion of the other.
Date Filed
and Case No.: February 2, 2007. No. S-06-102.
Summary:
In October 2000, the Supreme Court of British Columbia, Canada,
issued an original custody determination granting "sole interim
custody" of Steffany L. to her mother, Susan L. In accordance
with the order, Susan moved with Steffany to Lincoln, Nebraska,
and they have lived in Nebraska since then. After Steffany reported
sexual abuse by her father, Steven L., during visitation in Canada,
Susan asked that the district court for Lancaster County "assume
jurisdiction over the final determination of paternity, custody
and support." Her request was under the Convention on the Civil
Aspects of International Child Abduction (Hague Convention), Oct.
25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented
by the International Child Abduction Remedies Act (ICARA), 42 U.S.C.
§§ 11601 to 11611 (2000 & Supp. Ill 2003). Because
the Canadian court refused to cede jurisdiction to Nebraska, and
Steven still resides in British Columbia, the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), Neb. Rev. Stat. §§
43-1226 to 43-1266 (Reissue 2004), provides that Nebraska does not
have jurisdiction to modify the custody determination. Susan asserted,
however, that the application of the UCCJEA to bar the district
court's jurisdiction in this case was preempted by the Hague Convention
and that the UCCJEA violated the Nebraska Constitution in various
respects. The district court concluded it did not have jurisdiction
to modify the Canadian custody order, and Susan appealed to the
Nebraska Supreme Court.
Susan asserts
that the district court erred in determining (1) that it did not
have jurisdiction over the issues of paternity, custody, visitation,
and support for Steffany; (2) that it did not have jurisdiction
to suspend visitation between Steffany and Steven; (3) that the
UCCJEA was not preempted by the Hague Convention; and (4) that §
434230(a) and (b) is not unconstitutional.
Does the
district court have jurisdiction? Susan appeals the order of
the district court finding that it did not have jurisdiction to
modify the terms of the Canadian custody orders and accordingly
could not "assume jurisdiction" pursuant to Susan's motion.
The Court said that there is no dispute that under the UCCJEA, the
Canadian court maintains exclusive continuing jurisdiction over
legal custody, physical custody, and visitation with respect to
Steffany. The issue presented is whether the Hague Convention or
the Nebraska Constitution prohibits the application of the UCCJEA
jurisdictional provisions which give the Canadian court exclusive
jurisdiction over custody determinations involving Steffany. The
Court concluded that they do not.
* •Preemption.
The Court found no merit to Susan's argument that the UCCJEA provisions
are preempted by the Hague Convention and its implementing law,
the ICARA because it did not find either the Hague Convention
or the ICARA applicable to this case. No action concerning Steffany
has been commenced under the Hague Convention and because she
is neither the plaintiff nor the defendant in an action under
the Hague Convention, Susan's preemption argument rests on the
alleged "underlying [premise]" of the Hague Convention
that custody disputes be decided in the child's place of "'habitual
residence'" and its "foremost commitment" to "safeguard
children from grave risk of harm." Steffany simply does not
fall within the purview of the Hague Convention or the ICARA.
As such, the Court did not consider whether any portion of that
law preempts the jurisdictional mandates of the UCCJEA and affirmed
the district court's conclusion that the Hague Convention and
the ICARA do not impede the court's adherence to the UCCJEA in
this case.
* •Constitutionality.
Susan also asserted that the UCCJEA should not have been followed
by the district court because the UCCJEA's jurisdictional provisions
are unconstitutional. The Court has said that the jurisdiction
of the district courts conferred by the terms of the Nebraska
Constitution, as thus conferred, is beyond the power of the Legislature
to limit or control and while the Legislature may grant to the
district courts such other jurisdiction as it may deem proper,
it cannot limit or take away from such courts their broad and
general jurisdiction which the constitution has conferred upon
them. The proposition that the Legislature cannot limit or take
away the broad and general jurisdiction of the district courts,
as conferred by the Nebraska Constitution, has most often been
invoked when a legislative enactment has sought to give exclusive,
original jurisdiction over a chancery or common-law class of cases
to the county courts or to an administrative agency or agent.
The proposition has never been applied to find unconstitutional
provisions such as those presented in this case. The Court' common-law
jurisprudence recognized the fundamental" proposition that
"where courts have concurrent jurisdiction, the first to
assume jurisdiction retains it to the exclusion of the other.
Here §§ 43-1230 and 43-1240 do not deprive the district
court of its broad and general original jurisdiction over child
custody. Rather, they simply codify rules related to the exercise
of that jurisdiction where there is concurrent jurisdiction with
another court. The Court accordingly found no merit to Susan's
argument that these provisions violate §§1 and 9 of
the Nebraska Constitution.
* •Neb.
Const. Art. V, § 19. Susan next argued that leaving the
Nebraska Supreme Court's power to modify contingent upon a foreign
court's decision whether to cede jurisdiction violates the mandate
of Neb. Const. Art. V, § 19 (all courts of the same class
or grade in this state be uniform.) The Court concluded that because
the UCCJEA is uniformly applicable to all district courts of the
same class, there is no violation of Neb. Const. art. V, §
19. "The fact that the exercise of discretion will not be
strictly homogeneous does create a lack of uniformity in the constitutional
sense" they ruled. Regardless of the ability to ensure uniformity
among courts of foreign nations in their deliberative process
to determine whether to cede jurisdiction, the courts of this
state are uniform in their powers upon such deliberation. "Susan's
contention that the UCCJEA violates article V, § 19, of the
Nebraska Constitution is likewise without merit."
* •Neb.
Const. Art. I, § 3. Finally, Susan asserted that her
rights of due process and equal protection under Neb. Const. art.
I, § 3, are violated by the UCCJEA because there is no mechanism
for a parent such as Susan to be heard in order to challenge the
refusal of the foreign court to give its blessing and approval
to the district court's exercise of the jurisdiction. The Court
noted that to protect Susan's due process rights, due process
need not take place in Nebraska. Susan made no claim that the
Canadian courts have failed to afford her due process. "Certainly,
there is not an innate due process violation due to the fact that
a Canadian appellate court would be reviewing a lower court's
decision from its own country" the Court said. "We find
no violation of Susan's rights under Neb. Const. Art. I in the
district court's application of the UCCJEA in this case.
Conclusion.
The Court affirmed the district court's conclusion that pursuant
to §§ 43-1239 and 43-1240, the Canadian courts have exclusive
continuing jurisdiction over child custody determinations concerning
Steffany and that it could not "assume jurisdiction" to
modify the Canadian orders. AFFIRMED.
Jurisdiction,
Convention on the Civil Aspects of International Child Abduction (Hague
Convention) Constitutionality
In this appeal
of a district court's decision not to exercise jurisdiction over
an international custody case, invoking arguments under the Convention
on the Civil Aspects of International Child Abduction (Hague Convention)
and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
the Nebraska Supreme Court affirms the district court decision.
Susan
L. v. Steven L. 273 Neb. 24 (2007)
Supreme
Court Headnotes
Judgments:
- [Jurisdiction:]
(Appeal and Error.) When a jurisdictional question does not
involve a factual dispute, determination of the issue is a matter
of law which requires an appellate court to reach a conclusion independent
from that of the trial court.
Child Custody:
- [Kidnapping:]
(Jurisdiction: States.) The Convention on the Civil Aspects
of International Child Abduction seeks to establish procedures to
ensure a child's prompt return to the state of his or her "habitual
residence" where removed or retained therefrom. •••
The Convention on the Civil Aspects of International Child Abduction
is applicable to any child "habitually resident" in a
contracting state immediately before any breach of custody or access
rights. ••• The Convention on the Civil Aspects of
International Child Abduction does not seek to establish a child's
"habitual residence" as a general jurisdictional mandate
for custody disputes. ••• The Convention on the Civil
Aspects of International Child Abduction makes no statement as to
the relevancy of grave risk of harm in deciding jurisdiction or
the appropriate forum for resolution of custody issues involving
a child not wrongfully removed or retained. (States.) Under
the Convention on the Civil Aspects of International Child Abduction,
grave risk of harm is essentially an affirmative defense to the
return of the child.
- [Jurisdiction:]
(Statutes.) Neb. Rev. Stat. §§ 43-1230 and 43-1240
(Reissue 2004) do not deprive the district court of its broad and
general original jurisdiction over child custody.
Constitutional
Law:
- The fact that
the exercise of discretion will not be strictly homogeneous does
create a lack of uniformity in the constitutional sense.
- [Jurisdiction:]
The term "jurisdiction," as used in Neb. Const. art. V,
§ 9, denotes the concept of legal power to interpret and administer
the law in the premises. ••• The constitutional grant
of jurisdiction to the district court, while original, is not exclusive.
(Legislature.) The jurisdiction of the district courts conferred
by the terms of the Nebraska Constitution, as thus conferred, is
beyond the power of the Legislature to limit or control; while the
Legislature may grant to the district courts such other jurisdiction
as it may deem proper, it cannot limit or take away from such courts
their broad and general jurisdiction which the constitution has
conferred upon them.
- [Due Process.]
Due process as required by Neb. Const. art. I, § 3, need
not take place in Nebraska.
Courts:
- [Jurisdiction.]
Where courts have concurrent jurisdiction, the first to assume
jurisdiction retains it to the exclusion of the other.
Date Filed
and Case No.: February 2, 2007. No. S-06-102.
Summary:
In October 2000, the Supreme Court of British Columbia, Canada,
issued an original custody determination granting "sole interim
custody" of Steffany L. to her mother, Susan L. In accordance
with the order, Susan moved with Steffany to Lincoln, Nebraska,
and they have lived in Nebraska since then. After Steffany reported
sexual abuse by her father, Steven L., during visitation in Canada,
Susan asked that the district court for Lancaster County "assume
jurisdiction over the final determination of paternity, custody
and support." Her request was under the Convention on the Civil
Aspects of International Child Abduction (Hague Convention), Oct.
25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented
by the International Child Abduction Remedies Act (ICARA), 42 U.S.C.
§§ 11601 to 11611 (2000 & Supp. Ill 2003). Because
the Canadian court refused to cede jurisdiction to Nebraska, and
Steven still resides in British Columbia, the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), Neb. Rev. Stat. §§
43-1226 to 43-1266 (Reissue 2004), provides that Nebraska does not
have jurisdiction to modify the custody determination. Susan asserted,
however, that the application of the UCCJEA to bar the district
court's jurisdiction in this case was preempted by the Hague Convention
and that the UCCJEA violated the Nebraska Constitution in various
respects. The district court concluded it did not have jurisdiction
to modify the Canadian custody order, and Susan appealed to the
Nebraska Supreme Court.
Susan asserts
that the district court erred in determining (1) that it did not
have jurisdiction over the issues of paternity, custody, visitation,
and support for Steffany; (2) that it did not have jurisdiction
to suspend visitation between Steffany and Steven; (3) that the
UCCJEA was not preempted by the Hague Convention; and (4) that §
434230(a) and (b) is not unconstitutional.
Does the
district court have jurisdiction? Susan appeals the order of
the district court finding that it did not have jurisdiction to
modify the terms of the Canadian custody orders and accordingly
could not "assume jurisdiction" pursuant to Susan's motion.
The Court said that there is no dispute that under the UCCJEA, the
Canadian court maintains exclusive continuing jurisdiction over
legal custody, physical custody, and visitation with respect to
Steffany. The issue presented is whether the Hague Convention or
the Nebraska Constitution prohibits the application of the UCCJEA
jurisdictional provisions which give the Canadian court exclusive
jurisdiction over custody determinations involving Steffany. The
Court concluded that they do not.
* •Preemption.
The Court found no merit to Susan's argument that the UCCJEA provisions
are preempted by the Hague Convention and its implementing law,
the ICARA because it did not find either the Hague Convention
or the ICARA applicable to this case. No action concerning Steffany
has been commenced under the Hague Convention and because she
is neither the plaintiff nor the defendant in an action under
the Hague Convention, Susan's preemption argument rests on the
alleged "underlying [premise]" of the Hague Convention
that custody disputes be decided in the child's place of "'habitual
residence'" and its "foremost commitment" to "safeguard
children from grave risk of harm." Steffany simply does not
fall within the purview of the Hague Convention or the ICARA.
As such, the Court did not consider whether any portion of that
law preempts the jurisdictional mandates of the UCCJEA and affirmed
the district court's conclusion that the Hague Convention and
the ICARA do not impede the court's adherence to the UCCJEA in
this case.
* •Constitutionality.
Susan also asserted that the UCCJEA should not have been followed
by the district court because the UCCJEA's jurisdictional provisions
are unconstitutional. The Court has said that the jurisdiction
of the district courts conferred by the terms of the Nebraska
Constitution, as thus conferred, is beyond the power of the Legislature
to limit or control and while the Legislature may grant to the
district courts such other jurisdiction as it may deem proper,
it cannot limit or take away from such courts their broad and
general jurisdiction which the constitution has conferred upon
them. The proposition that the Legislature cannot limit or take
away the broad and general jurisdiction of the district courts,
as conferred by the Nebraska Constitution, has most often been
invoked when a legislative enactment has sought to give exclusive,
original jurisdiction over a chancery or common-law class of cases
to the county courts or to an administrative agency or agent.
The proposition has never been applied to find unconstitutional
provisions such as those presented in this case. The Court' common-law
jurisprudence recognized the fundamental" proposition that
"where courts have concurrent jurisdiction, the first to
assume jurisdiction retains it to the exclusion of the other.
Here §§ 43-1230 and 43-1240 do not deprive the district
court of its broad and general original jurisdiction over child
custody. Rather, they simply codify rules related to the exercise
of that jurisdiction where there is concurrent jurisdiction with
another court. The Court accordingly found no merit to Susan's
argument that these provisions violate §§1 and 9 of
the Nebraska Constitution.
* •Neb.
Const. Art. V, § 19. Susan next argued that leaving the
Nebraska Supreme Court's power to modify contingent upon a foreign
court's decision whether to cede jurisdiction violates the mandate
of Neb. Const. Art. V, § 19 (all courts of the same class
or grade in this state be uniform.) The Court concluded that because
the UCCJEA is uniformly applicable to all district courts of the
same class, there is no violation of Neb. Const. art. V, §
19. "The fact that the exercise of discretion will not be
strictly homogeneous does create a lack of uniformity in the constitutional
sense" they ruled. Regardless of the ability to ensure uniformity
among courts of foreign nations in their deliberative process
to determine whether to cede jurisdiction, the courts of this
state are uniform in their powers upon such deliberation. "Susan's
contention that the UCCJEA violates article V, § 19, of the
Nebraska Constitution is likewise without merit."
* •Neb.
Const. Art. I, § 3. Finally, Susan asserted that her
rights of due process and equal protection under Neb. Const. art.
I, § 3, are violated by the UCCJEA because there is no mechanism
for a parent such as Susan to be heard in order to challenge the
refusal of the foreign court to give its blessing and approval
to the district court's exercise of the jurisdiction. The Court
noted that to protect Susan's due process rights, due process
need not take place in Nebraska. Susan made no claim that the
Canadian courts have failed to afford her due process. "Certainly,
there is not an innate due process violation due to the fact that
a Canadian appellate court would be reviewing a lower court's
decision from its own country" the Court said. "We find
no violation of Susan's rights under Neb. Const. Art. I in the
district court's application of the UCCJEA in this case.
Conclusion.
The Court affirmed the district court's conclusion that pursuant
to §§ 43-1239 and 43-1240, the Canadian courts have exclusive
continuing jurisdiction over child custody determinations concerning
Steffany and that it could not "assume jurisdiction" to
modify the Canadian orders. AFFIRMED.
Jurisdiction,
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Constitutionality
In this appeal
of a district court's decision not to exercise jurisdiction over
an international custody case, invoking arguments under the Convention
on the Civil Aspects of International Child Abduction (Hague Convention)
and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
the Nebraska Supreme Court affirms the district court decision.
Susan
L. v. Steven L. 273 Neb. 24 (2007)
Supreme
Court Headnotes
Judgments:
- [Jurisdiction:]
(Appeal and Error.) When a jurisdictional question does not
involve a factual dispute, determination of the issue is a matter
of law which requires an appellate court to reach a conclusion independent
from that of the trial court.
Child Custody:
- [Kidnapping:]
(Jurisdiction: States.) The Convention on the Civil Aspects
of International Child Abduction seeks to establish procedures to
ensure a child's prompt return to the state of his or her "habitual
residence" where removed or retained therefrom. •••
The Convention on the Civil Aspects of International Child Abduction
is applicable to any child "habitually resident" in a
contracting state immediately before any breach of custody or access
rights. ••• The Convention on the Civil Aspects of
International Child Abduction does not seek to establish a child's
"habitual residence" as a general jurisdictional mandate
for custody disputes. ••• The Convention on the Civil
Aspects of International Child Abduction makes no statement as to
the relevancy of grave risk of harm in deciding jurisdiction or
the appropriate forum for resolution of custody issues involving
a child not wrongfully removed or retained. (States.) Under
the Convention on the Civil Aspects of International Child Abduction,
grave risk of harm is essentially an affirmative defense to the
return of the child.
- [Jurisdiction:]
(Statutes.) Neb. Rev. Stat. §§ 43-1230 and 43-1240
(Reissue 2004) do not deprive the district court of its broad and
general original jurisdiction over child custody.
Constitutional
Law:
- The fact that
the exercise of discretion will not be strictly homogeneous does
create a lack of uniformity in the constitutional sense.
- [Jurisdiction:]
The term "jurisdiction," as used in Neb. Const. art. V,
§ 9, denotes the concept of legal power to interpret and administer
the law in the premises. ••• The constitutional grant
of jurisdiction to the district court, while original, is not exclusive.
(Legislature.) The jurisdiction of the district courts conferred
by the terms of the Nebraska Constitution, as thus conferred, is
beyond the power of the Legislature to limit or control; while the
Legislature may grant to the district courts such other jurisdiction
as it may deem proper, it cannot limit or take away from such courts
their broad and general jurisdiction which the constitution has
conferred upon them.
- [Due Process.]
Due process as required by Neb. Const. art. I, § 3, need
not take place in Nebraska.
Courts:
- [Jurisdiction.]
Where courts have concurrent jurisdiction, the first to assume
jurisdiction retains it to the exclusion of the other.
Date Filed
and Case No.: February 2, 2007. No. S-06-102.
Summary:
In October 2000, the Supreme Court of British Columbia, Canada,
issued an original custody determination granting "sole interim
custody" of Steffany L. to her mother, Susan L. In accordance
with the order, Susan moved with Steffany to Lincoln, Nebraska,
and they have lived in Nebraska since then. After Steffany reported
sexual abuse by her father, Steven L., during visitation in Canada,
Susan asked that the district court for Lancaster County "assume
jurisdiction over the final determination of paternity, custody
and support." Her request was under the Convention on the Civil
Aspects of International Child Abduction (Hague Convention), Oct.
25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented
by the International Child Abduction Remedies Act (ICARA), 42 U.S.C.
§§ 11601 to 11611 (2000 & Supp. Ill 2003). Because
the Canadian court refused to cede jurisdiction to Nebraska, and
Steven still resides in British Columbia, the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), Neb. Rev. Stat. §§
43-1226 to 43-1266 (Reissue 2004), provides that Nebraska does not
have jurisdiction to modify the custody determination. Susan asserted,
however, that the application of the UCCJEA to bar the district
court's jurisdiction in this case was preempted by the Hague Convention
and that the UCCJEA violated the Nebraska Constitution in various
respects. The district court concluded it did not have jurisdiction
to modify the Canadian custody order, and Susan appealed to the
Nebraska Supreme Court.
Susan asserts
that the district court erred in determining (1) that it did not
have jurisdiction over the issues of paternity, custody, visitation,
and support for Steffany; (2) that it did not have jurisdiction
to suspend visitation between Steffany and Steven; (3) that the
UCCJEA was not preempted by the Hague Convention; and (4) that §
434230(a) and (b) is not unconstitutional.
Does the
district court have jurisdiction? Susan appeals the order of
the district court finding that it did not have jurisdiction to
modify the terms of the Canadian custody orders and accordingly
could not "assume jurisdiction" pursuant to Susan's motion.
The Court said that there is no dispute that under the UCCJEA, the
Canadian court maintains exclusive continuing jurisdiction over
legal custody, physical custody, and visitation with respect to
Steffany. The issue presented is whether the Hague Convention or
the Nebraska Constitution prohibits the application of the UCCJEA
jurisdictional provisions which give the Canadian court exclusive
jurisdiction over custody determinations involving Steffany. The
Court concluded that they do not.
* •Preemption.
The Court found no merit to Susan's argument that the UCCJEA provisions
are preempted by the Hague Convention and its implementing law,
the ICARA because it did not find either the Hague Convention
or the ICARA applicable to this case. No action concerning Steffany
has been commenced under the Hague Convention and because she
is neither the plaintiff nor the defendant in an action under
the Hague Convention, Susan's preemption argument rests on the
alleged "underlying [premise]" of the Hague Convention
that custody disputes be decided in the child's place of "'habitual
residence'" and its "foremost commitment" to "safeguard
children from grave risk of harm." Steffany simply does not
fall within the purview of the Hague Convention or the ICARA.
As such, the Court did not consider whether any portion of that
law preempts the jurisdictional mandates of the UCCJEA and affirmed
the district court's conclusion that the Hague Convention and
the ICARA do not impede the court's adherence to the UCCJEA in
this case.
* •Constitutionality.
Susan also asserted that the UCCJEA should not have been followed
by the district court because the UCCJEA's jurisdictional provisions
are unconstitutional. The Court has said that the jurisdiction
of the district courts conferred by the terms of the Nebraska
Constitution, as thus conferred, is beyond the power of the Legislature
to limit or control and while the Legislature may grant to the
district courts such other jurisdiction as it may deem proper,
it cannot limit or take away from such courts their broad and
general jurisdiction which the constitution has conferred upon
them. The proposition that the Legislature cannot limit or take
away the broad and general jurisdiction of the district courts,
as conferred by the Nebraska Constitution, has most often been
invoked when a legislative enactment has sought to give exclusive,
original jurisdiction over a chancery or common-law class of cases
to the county courts or to an administrative agency or agent.
The proposition has never been applied to find unconstitutional
provisions such as those presented in this case. The Court' common-law
jurisprudence recognized the fundamental" proposition that
"where courts have concurrent jurisdiction, the first to
assume jurisdiction retains it to the exclusion of the other.
Here §§ 43-1230 and 43-1240 do not deprive the district
court of its broad and general original jurisdiction over child
custody. Rather, they simply codify rules related to the exercise
of that jurisdiction where there is concurrent jurisdiction with
another court. The Court accordingly found no merit to Susan's
argument that these provisions violate §§1 and 9 of
the Nebraska Constitution.
* •Neb.
Const. Art. V, § 19. Susan next argued that leaving the
Nebraska Supreme Court's power to modify contingent upon a foreign
court's decision whether to cede jurisdiction violates the mandate
of Neb. Const. Art. V, § 19 (all courts of the same class
or grade in this state be uniform.) The Court concluded that because
the UCCJEA is uniformly applicable to all district courts of the
same class, there is no violation of Neb. Const. art. V, §
19. "The fact that the exercise of discretion will not be
strictly homogeneous does create a lack of uniformity in the constitutional
sense" they ruled. Regardless of the ability to ensure uniformity
among courts of foreign nations in their deliberative process
to determine whether to cede jurisdiction, the courts of this
state are uniform in their powers upon such deliberation. "Susan's
contention that the UCCJEA violates article V, § 19, of the
Nebraska Constitution is likewise without merit."
* •Neb.
Const. Art. I, § 3. Finally, Susan asserted that her
rights of due process and equal protection under Neb. Const. art.
I, § 3, are violated by the UCCJEA because there is no mechanism
for a parent such as Susan to be heard in order to challenge the
refusal of the foreign court to give its blessing and approval
to the district court's exercise of the jurisdiction. The Court
noted that to protect Susan's due process rights, due process
need not take place in Nebraska. Susan made no claim that the
Canadian courts have failed to afford her due process. "Certainly,
there is not an innate due process violation due to the fact that
a Canadian appellate court would be reviewing a lower court's
decision from its own country" the Court said. "We find
no violation of Susan's rights under Neb. Const. Art. I in the
district court's application of the UCCJEA in this case.
Conclusion.
The Court affirmed the district court's conclusion that pursuant
to §§ 43-1239 and 43-1240, the Canadian courts have exclusive
continuing jurisdiction over child custody determinations concerning
Steffany and that it could not "assume jurisdiction" to
modify the Canadian orders. AFFIRMED.
As a juvenile
court ordered restitution as part of a disposition based on a number
"plucked . . . out of the air" the Nebraska Supreme Court
reverses and remands that portion of the disposition order for further
hearing as to the amount.
In
re Interest of Brandon M., 273 Neb. 47 (2007)
Supreme
Court Headnotes
Juvenile
Courts:
- A juvenile
court proceeding is not a prosecution for crime, but a special proceeding
that serves as an ameliorative alternative to a criminal prosecution.
- [Appeal
and Error.] Juvenile cases are reviewed de novo on the record,
and an appellate court is required to reach a conclusion independent
of the juvenile court's findings.
- [Restitution.]
Because juvenile proceedings are not criminal proceedings, the requirements
of Neb. Rev. Stat. §§ 29-2280 and 29-2281 (Reissue 1995)
are inapplicable to an order of restitution entered pursuant to
Neb. Rev. Stat. § 43-286(l)(a) (Reissue 2004). •••
Although strict rules of evidence do not apply at dispositional
hearings in juvenile cases, the record must nevertheless support
the court's action in imposing restitution.
Date Filed
and Case No.: February 2, 2007. No. S-06-508.
Summary:
In this delinquency proceeding brought under the Nebraska Juvenile
Code, Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2004),
Brandon M. appeals from that portion of a dispositional order which
required him to pay $3,000 in restitution to the victim of the burglary
he committed. Brandon admitted to a petition alleging that he committed
felony burglary and was adjudicated a child described by §
43-247(2). At the dispositional hearing, the court received a predisposition
investigation report which included a form filled out by the victim
of the burglary and a letter written by the victim and her family.
The victim was an 82-year-old who wrote on the form that she had
been reimbursed $3,600 from her bank for a stolen check. In the
accompanying letter, the victim stated items taken from her but
the values were not listed. During the dispositional hearing, Brandon
asked for an evidentiary hearing. The court did not directly address
his request but instead asked Brandon where the victim's rings and
jewelry were. Brandon denied having any of the stolen items and
said his accomplice took the items. After this exchange, the court
noted: "The bank may have made this victim whole on the $3,600
cash or whatever that was taken, but she's missing probably anywhere
from five to $10,000 in other items . . . ." In imposing restitution,
the court ordered the payment of restitution in the amount of $3,000
saying "I plucked that, in a sense, out of the air, and I know
that that gives us a good issue on appeal, if you want to appeal
that portion, but I think that is a low ball -- an extreme low ball
figure, but I also don't know that you're capable of paying more
than that. You will pay at a rate of $150 per month until further
order of the Court." Brandon appealed contesting the term and
condition of restitution. The Nebraska Supreme Court moved the case
to its docket.
Did the juvenile
court err because the restitution order violated Neb. Rev. Stat.
§§ 29-2280 and 29-2281 (Reissue 1995) and case law interpreting
these statutes? Although his assignments of error broadly attack
the juvenile court's order imposing restitution, in his brief, Brandon
argued only that the juvenile court erred because the restitution
order violated Neb. Rev. Stat. §§ 29-2280 and 29-2281
(Reissue 1995) and case law interpreting these statutes. As this
was a juvenile disposition and not a criminal sentencing, the Court
narrowed the issue by asking was there error by the juvenile court
in ordering Brandin to pay $3,000 in restitution without considering
his earning ability, employment status, financial resources, and
family or other legal obligations. The authority cited by Brandon
clearly required a sentencing court imposing restitution after a
conviction to base the amount of the restitution on the actual damages
sustained by the victim based on sworn evidence contained in the
record. The authority further requires a sentencing court imposing
restitution after a conviction to consider the defendant's earning
ability, employment status, financial resources, and family or other
legal obligations. In a sense, the Court agreed with Brandon that
these requirements were not met. However, the order of restitution
here was made at the dispositional phase of a juvenile proceeding.
The emphasis on training and rehabilitation, rather than punishment,
is underscored by the declaration that juvenile proceedings are
civil, rather than criminal, in nature. "Because juvenile proceedings
are not criminal proceedings, the order of restitution entered at
the dispositional hearing was not imposed by a sentencing court
after a conviction. As such, the requirements of §§ 29-2280
and 29-2281 are inapplicable, and we find Brandon's arguments to
be without merit" said the Court.
On the unique
facts of this case, however, the Court did not limit its analysis
to an examination of the error argued by Brandon. The Court noted
that the Nebraska Juvenile Code authorizes a court to order "restitution
of any property stolen or damaged" upon a juvenile as a term
and condition of continued disposition if it is "in the interest
of the juvenile's reformation or rehabilitation." Based upon
its review of the record, the Court concluded that requiring restitution
was in the interest of Brandon's reformation and rehabilitation.
Was there
error by the juvenile court in determining the amount of restitution?
"However, the amount of the restitution order is problematic"
said the Court. The juvenile court judge candidly admitted that
his valuation of the missing items at $5,000 to $10,000 was "plucked
. . . out of the air." Although strict rules of evidence do
not apply at dispositional hearings in juvenile cases the record
must nevertheless support the court's action in imposing restitution.
On the record before it, the Court said there is nothing to support
the amount of restitution which Brandon was required to pay to the
victim.
Conclusion:
The Court affirmed all portions of the dispositional order except
the provision dealing with restitution. Because the record was insufficient
to support the amount of restitution ordered by the separate juvenile
court, they reversed that portion of the dispositional order and
remanded that cause for further proceedings. AFFIRMED IN PART, AND
IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Post
Conviction Action, Denial of Motion to Amend, Final Order
Here the Nebraska
Supreme Court concludes that an order denying leave to amend a postconviction
motion from which petitioner sought to appeal is not a "final
judgment" under § 29-3002 and is not a final, appealable
order. The appeal was dismissed for lack of jurisdiction.
State
v. Hudson, 273 Neb. 42 (2007)
Supreme
Court Headnotes
Jurisdiction:
- [Appeal
and Error.] A jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter
of law. ••• 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.
- [Final
Orders:] (Appeal and Error.) For an appellate court to acquire
jurisdiction of an appeal, there must be a final judgment or final
order entered by the tribunal from which the appeal is taken.
Postconviction:
- [Pleadings:]
(Final Orders: Appeal and Error.) An order ruling on a motion
filed in a pending postconviction case seeking to amend the postconviction
motion to assert additional claims is not a final judgment and is
not appealable under Neb. Rev. Stat. § 29-3002 (Reissue 1995).
••• The resolution of a motion to amend a postconviction
motion to assert additional claims does not affect a substantial
right and is not a final order under Neb. Rev. Stat. § 25-1902
(Reissue 1995).
Date Filed
and Case No.: February 2, 2007. No. S-06-432.
Summary:
Elmore Hudson, Jr., was convicted of first degree murder, attempted
second degree murder, and two counts of use of a deadly weapon to
commit a felony. Following the affirmance of his convictions on
direct appeal, Stat
