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Court of Appeals Call Case Summaries

Moore, Chief Judge, Riedmann and Bishop, Judges

Lincoln - Tuesday, December 13, 2016 subject to call at 1:00 PM

A-15-0946, In re Interest of Elijah P., State of Nebraska v. Erika D. (Appellant) and Joshua P.  (Cross-Appellant)

 Separate Juvenile Court for Douglas County, Judge Christopher E. Kelly

Attorney for Appellant:  Zoe R. Wade (Douglas County Public Defender’s Office)

Attorney for Cross-Appellant:  Matthew R. Kahler (Finley & Kahler Law Firm, PC, LLO)

Attorney for Appellee:  Amy Schuchman (Douglas County Attorney’s Office)

Juvenile Action:  Termination of Parental Rights

Action Taken by Trial Court:  The juvenile court terminated the parental rights of the appellant and cross-appellant to their minor children.

Assignments of Error on Appeal:  On appeal, Erika assigns that the juvenile court erred in: (1) abdicating its gatekeeping function under Daubert by failing to set forth its reasoning for concluding Dr. Haney’s testimony was reliable, (2) implicitly finding the scientific basis for Dr. Haney’s opinion was scientifically reliable under Daubert, (3) implicitly finding Dr. Haney conducted a reliable differential diagnosis, () finding that she subjected Elijah to aggravated circumstances, (5) excusing reasonable efforts under Neb. Rev. stat. § 43-283.01, (6) finding that she failed to meet her children’s medical, therapeutic, and dental needs, such that the minor children come within Neb. Rev. Stat. § 43-247(3)(a), and (8) finding that termination of her parental rights is in the children’s best interests.

On cross-appeal, Joshua assigns that the juvenile court erred in: (1) finding that the minor children come within the meaning of Neb. Rev. Stat. § 43-292(2) and (9), and (2) finding that terminating his parental rights is in the children’s best interests.

A-16-553, In re Interest of Hindryk B.:  State of Nebraska v. Cherri B. (Appellant)

Hitchcock County, County Judge Anne Paine

Attorney for Appellant: Ashley K. Spahn (Law Office of Ashley K. Spahn)

Attorney for Appellee:  D. Eugene Garner (Hitchcock County Attorney)

Guardian ad Litem: Jordan J. Mruz (Fye Law Office)

Juvenile Action:  Adjudication and Termination of Parental Rights

Action Taken by Trial Court:  The juvenile court found that Hindryk was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) due to the faults or habits of Cherri. The juvenile court also terminated Cherri’s parental rights to Hindryk under Neb. Rev. Stat. § 43-292(2), (4), (6) and (7), finding that termination was in the child’s best interest.

Assignments of Error on Appeal:  Cherri assigns that the juvenile court erred in: (1) finding grounds existed to terminate her parental rights under § 43-292(2) and (6); and (2) finding it was in the child’s best interest to terminate her parental rights.

A-15-0897, State of Nebraska v. Jeffrey A. Huff (Appellant)

Lancaster County, District Court Judge Robert R. Otte

Attorney for Appellant:  Robert G. Hays (Lancaster County Public Defender’s Office)

Attorney for Appellee:  Kimberly A. Klein (Attorney General’s Office)

Criminal Action:  First degree sexual assault

Action Taken by Trial Court:  A jury found Huff guilty of the above offense.

Assignments of Error on Appeal:  On appeal, Huff assigns that the district court erred in: (1) granting the State’s motion to strike a juror for cause over his objection, (2) denying his motion for mistrial, and (3) imposing an excessive sentence.

A-16-0255 State of Nebraska v. Jonathan J. Rivera (Appellant)

Lancaster County, District Court Judge Andrew R. Jacobsen

Attorney for Appellant:  Mark E. Rappl

Attorney for Appellee:  Douglas J. Peterson, Kimberly A. Klein (Attorney General’s Office)

Criminal Action:  Second-offense DUI, over .15 BAC

Action Taken by Trial Court:  The county court found Rivera guilty of the above offense, pursuant to a stipulated trial. He appealed to the district court, which affirmed.

Assignments of Error on Appeal:  On appeal, Rivera assigns that the district court erred in affirming the county court’s order overruling his motion to suppress.

A-15-0648, In re Estate of Howard No case summary is available for this case at this time.

Lincoln - Wednesday, December 14, 2016 subject to call at 1:00 PM

A-16-0486, Michael Buckeridge as father and next friend of Kaleigh Buckeridge (Appellant) v. Northfield Retirement Communities

Nebraska Workers’ Compensation Court, Judge Daniel Fridrich

Attorney for Appellant:  Michael W. Meister

Attorney for Appellee:  Gregory D. Worth (McAnany, VanCleave & Phillips)

Civil Action:  Workers’ compensation benefits

Action Taken by Trial Court:  The Workers’ Compensation Court denied survivor benefits to appellant.

Assignments of Error on Appeal:  On appeal, Buckridge assigns that: (1) there is not sufficient competent evidence in the record to find that Kena Buckridge committed suicide and the defendant did not meet its burden of proof in that regard as a matter of law; (2) the trial court failed to apply the presumption against suicide as required by law under the facts as they existed; and (3) the trial court improperly relied upon evidence which caused the court to exhibit bias against plaintiff’s decedent resulting in a denial of benefits.

A-16-292, Angelina Leigh Spethman (Appellant) v. Thomas Edward Spethman

Douglas County, District Judge Kimberly M. Pankonin

Attorney for Appellant: Joh J. Puk (Woodke & Gibbons, P.C., L.L.O.)

Attorney for Appellee:  Brent M. Kuhn (Brent Kuhn Law)

Civil Action:  Child Custody and Parenting Time

Action Taken by Trial Court:  The district court awarded Angelina and Thomas joint physical custody of the parties’ five minor children, with alternating consecutive seven day parenting times in divorce decree.

Assignments of Error on Appeal:  Angelina assigns that the district court erred in (1) awarding Thomas joint physical custody over the five minor children, (2) excluding evidence and not allowing her to present evidence of sexual and intimate partner abuse during the marriage and sustaining the objections of Thomas’ counsel on the same, and (3) abusing its discretion in the award of the parenting time, awarding alternating consecutive seven day periods of time.

A-16-0054, Sonia Becher (Appellee/Cross-Appellant) v. Mark A. Becher (Appellant)

District Court for Lancaster County, District Judge Steven D. Burns

Attorney for Appellant:  David P. Kyker

Attorney for Appellee/Cross-Appellant:  Sally A. Rasmussen (Mattson Ricketts Law Firm)

Civil Action:  Dissolution of marriage

Action taken by the Trial Court:  After the parties stipulated to a dissolution trial before a referee, the trial court appointed a referee to make findings of fact and conclusions of law. Trial was held on 14 separate days before the referee. The referee’s report and the parties’ exceptions were filed with the court. The trial court received a bill of exceptions from the trial before the referee. The court entered a decree, dissolving the parties’ marriage and makings its own findings with respect to issues in the case.

Assignments of Error on Appeal:  Did the trial court err in failing to review the referee’s report to determine whether the referee’s findings were clearly against the weight of the evidence? Did the trial court abuse its discretion in setting aside certain property to Sonia as nonmarital? Did the trial court abuse its discretion in awarding Sonia 3 commercial properties? Did the trial court abuse its discretion in valuing certain properties? Did the trial court abuse its discretion in dividing the parties’ personal property? Did the trial court abuse its discretion in treating certain containers as personal property? Did the trial court abuse its discretion in determining marital debt? Did the trial court abuse its discretion in setting forth conflicting custodial arrangements for 1 of the parties’ children? Did the trial court abuse its discretion in determining the parties’ incomes for purposes of child support? Did the trial court abuse its discretion in failing to prepare a worksheet 3 in calculating child support? Did the trial court abuse its discretion in improperly crediting Mark for overpayment of temporary child support? Did the trial court abuse its discretion in requiring Mark to pay private school tuition? Did the trial court abuse its discretion in awarding alimony? Did the trial court abuse its discretion in awarding attorney fees?

Assignments of Error on Cross-Appeal:  Did the trial court err in allocating parenting time over the Christmas holiday? Did the trial court err in failing to characterize a life insurance policy purchased by Sonia’s father as nonmarital? Did the trial court err in failing to award Sonia nonmarital equity in certain property?

A-16-0476, State v. Stevenson No case summary is available for this case at this time.
Inbody and Pirtle, Judges, and McCormack, Justice, Retired

Lincoln - Wednesday, December 14, 2016 subject to call at 9:00 AM

A-15-0862, Shirley A. Smith and Stephen A. Smith v. Sarpy County; Sarpy County Department of Planning and Zoning; Bruce Fountain, Planning and Building Director; and Donna Lynam, Sarpy County Zoning Administrator and Code Enforcer (Appellants)

Sarpy County, District Court Judge William B. Zastera

Attorney for Appellant:  L. Kenneth Polikov, Michael A. Smith (County Attorney’s Office)

Attorney for Appellee:  Stephen L. Smith (Smith Law Offices)

Civil Action:  Summary Judgment

Action Taken by Trial Court:  The district court granted summary judgment to the Smiths on their complaint for injunctive relief. The court determined that no genuine issues of material fact existed with respect to the Smiths’ claim that they detrimentally relied on representations of the county in commencing a building project.

Assignments of Error on Appeal:  The county argues that the district court erred in granting summary judgment because there are genuine issues of fact regarding whether the Smiths began building in good faith reliance on the building and floodplain development permits.

A-16-387, A-16-388, State of Nebraska v. Jeff Hawks

 Lancaster County District Court Judge Darla Ideas

Attorney for Appellant: Robert B. Creager (Anderson, Creager & Wittstruck, P.C.)

Attorney for Appellee: Douglas J. Peterson, Kimberly A. Klein (Nebraska Attorney General’s Office)

Criminal: Conviction: Third degree sexual assault

Action Taken by Trial Court: The trial court consolidated two cases involving the sexual assault of two minor boys by Appellant and allowed testimony regarding uncharged conduct of a third minor boy. A jury found Appellant guilty for two counts of third degree sexual assault.

Assignments of Error on Appeal: Appellant has appealed his conviction for third degree sexual assault regarding the victim Alex W., claiming there was insufficient evidence to support a guilty verdict. Appellant also assigns that the trial court erred in consolidating the cases involving the victims Alex W. and Andrew H., and in allowing the evidence of uncharged conduct, causing prejudice against him and denying him a fair trial and a reasonable acquittal prospect. 

A-15-0752, In the Matter of the Irrevocable Trust of Mary Michalak, Richard L. Michalak, Jr. (Appellant) v. Jean Thompsett, Trustee

Sarpy County, County Court Judge Robert C. Wester

Attorney for Appellant:  James Walter Crampton

Attorney for Appellee:  Gerald D. Johnson (Johnson & Pekny, L.L.C.)

Civil Action: Trust Administration 

Action Taken by Trial Court:  The lower court approved the expenses and accounting of a trustee of an irrevocable trust and denied a beneficiary’s objection and request for a surcharge.

Assignments of Error on Appeal: On appeal, appellant asserts that the lower court erred in (1) approving the accounting and the expenditures and (2) failing to order the trustee to pay a surcharge.