264 results for 'court:"Nebraska Court Of Appeals"'.
J. Moore finds the district court improperly divided the marital estate in this dissolution proceeding. The court of appeals modifies the decree to restore the ex-wife’s maiden name. Though the wife did not move to amend pleadings, a court may constructively amend in order to render a consistent decision. The husband did not object to the request to restore the name and the court could have amended the pleadings to conform to the evidence. The court also abused its discretion by including the total value of the wife’s whole life insurance policy and two retirement accounts in the marital estate. Valuations and divisions of certain debts and property including a truck and trailer are also modified. Affirmed as modified.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: October 31, 2023, Case #: A-22-873, Categories: Family Law, Property, Contract
J. Riedmann finds the district court properly reinstated this child custody case, awarding the never-married parents joint legal and physical custody. The father spent several nights at a time at the mother’s house, operating as a family even after the couple’s relationship dissolved. After the father began dating another woman, the mother would not let him visit and she later moved to Nevada for a new job. Litigation became very complex after the father filed to establish custody and parenting time, and the case was eventually dismissed due to lack of prosecution. After the father’s motion to reinstate, the court determined that the mother failed to show the Nevada job constituted an improvement in employment. The court made findings that the father testified in a credible manner, but the mother did not, inaccurately claiming the father abandoned the child. Though the case had been dismissed when the mother left for Nevada, it was likely to be reinstated. The court’s statement regarding such is not enough to overcome the burden on a party seeking to disqualify a judge for alleged bias. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann, Filed On: October 31, 2023, Case #: A-23-004, Categories: Evidence, Family Law, Guardianship
[Consolidated.] J. Arterburn finds the trial court properly convicted defendant by plea agreement for possession of a deadly weapon by a prohibited person and attempted murder and unlawful discharge of a firearm. The plain terms of the plea agreement allowed the state to recommend a sentence that, after good time credit, would still require defendant to serve 22 years. But the state recommended an actual bottom number of 22 years, which with good time credit could result in parole at an earlier point. Though no restrictions were placed on the upper limit of the sentence, there was no breach of the agreement. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 31, 2023, Case #: A-23-011, Categories: Firearms, Murder, Plea
J. Bishop finds the county court improperly terminated the father’s rights to his minor daughter. The child was abandoned at a hospital and the state took custody, being the parents were unknown. In its order terminating parental rights, the juvenile court’s finding of unfitness was based on the father’s conduct of domestic violence prior to the child’s abandonment, and parental unfitness was not proven. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 31, 2023, Case #: A-23-158, Categories: Evidence, Family Law, Guardianship
J. Arterburn finds the district court properly denied the purported father’s motion to vacate an earlier judgment finding him to be the child’s father and ordering him to pay child support. Three years after the order, genetic testing proved that he was not the father. Twenty years after that, the court stipulated that he would be disestablished as the biological father while still being responsible for child support. He is judicially estopped from changing his prior stipulation that he is liable for child support. He hasn’t shown what circumstances have changed and does not allege that he was unaware of relevant information at the time of the stipulation. His arguments are without merit. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 31, 2023, Case #: A-22-815, Categories: Debt Collection, Family Law, Guardianship
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J. Arterburn finds the county court properly denied the mother’s request to change her sons’ surname to her maiden surname. The sons, now in high school, have had contentious relationships with their father, who they have witnessed abusing their mother and his other girlfriends. The father has had inconsistent relationships with the sons since the divorce, which happened when the sons were five and six years old. Though the sons use their mother’s maiden name where allowable and their father’s where legally required, evidence does not show that their substantial welfare requires the name change. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 24, 2023, Case #: A-22-878, Categories: Civil Procedure, Family Law, Juvenile Law
J. Bishop finds the county court properly terminated the father’s parental rights to his daughter. The child was removed from the mother’s home due to concerns that she had been exposed to drugs and has remained in foster care since, as the mother has failed to work with the human services department voluntarily. The father is currently incarcerated, with no means of support. Clear and convincing evidence supports termination. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 24, 2023, Case #: A-22-969, Categories: Evidence, Family Law, Guardianship
J. Moore finds the trial court properly terminated the mother’s parental rights to her two-year-old daughter. The daughter was born prematurely in the neonatal intensive care unit and her urine tested positive for meth. The father cannot be located. The mother’s actions have indicated substance use, and she has a history of convictions for possession and driving under the influence, all of which place the child at risk of harm. Clear and convincing evidence supports termination. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: October 24, 2023, Case #: A-23-355, Categories: Evidence, Family Law, Guardianship
J. Pirtle finds the county court properly terminated the father’s parental rights to his children. The father is an alcoholic who has been rough with the children and has abused the mother in their presence. He was arrested for leading police on a high-speed chase with the children in the car, after having smoked meth. He also killed the mother in the presence of the children by running her over with a car, fled the state while leaving the children alone, and has made no progress with rehabilitation programs. All evidence supports termination. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 24, 2023, Case #: A-23-297, Categories: Evidence, Family Law, Guardianship
J. Bishop finds the district court properly denied the motion to vacate a domestic abuse protection order filed by the mother against her child’s father. The father did not produce any admissible evidence to support his alleged untimely service or receipt of the court’s order for hearing. His affidavit was deemed inadmissible, and his counsel could have asked for a continuance to allow him an opportunity to testify as to when he received notice. No continuance was requested. No abuse of discretion is found. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 17, 2023, Case #: A-23-195, Categories: Family Law, Due Process, Restraining Order
J. Riedmann finds the trial court properly convicted defendant by no-contest plea for burglary and obstruction. Defendant was caught in the act of stealing an Xbox from an apartment when police responded to the apartment manager’s call. The minimum limit of defendant’s combined concurrent sentences is 16 months and the court’s statement of parole eligibility was nine months. Pronounced terms prevail over any conflict with truth-in-sentencing advisements. Without loss in good time, defendant is parole eligible after eight months. Because the truth-in-sentencing statements are not part of the sentence, no modification is required. The record does not disclose conversations between counsel and defendant and the court of appeals is unable to review claims of ineffective assistance. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann, Filed On: October 17, 2023, Case #: A-23-170, Categories: Burglary, Sentencing, Obstruction
J. Pirtle finds the district court properly affirmed the county court’s denial of the DUI defendant’s motion for absolute discharge on speedy trial grounds due to delays occurring from the forensic scientist’s lack of availability. Scheduling issues were identified well in advance of the original trial date and measures were taken to secure the availability of the expert’s testimony; due diligence was exercised. Defendant’s motion and subsequent appeal caused proceedings to extend beyond the six-month trial period, and so he has waived his right to a speedy trial. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 17, 2023, Case #: A-23-178, Categories: Dui, Speedy Trial, Experts
J. Moore finds the county court properly granted the restaurant owners’ motion to dismiss this wrongful termination suit brought by the cook who had made a verbal agreement for employment. The amended complaint shows that the cook was an at-will employee. He did not allege facts showing a claim for promissory estoppel or that the termination violated public policy. Factual allegations do not suggest the existence of missing elements and do not raise an expectation that evidence will develop through discovery. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: October 17, 2023, Case #: A-23-018, Categories: Employment, Evidence
J. Arterburn finds the juvenile court properly terminated the father’s parental rights to his minor child. Several children of various parentage were removed from the mother’s care due to neglect and drug use, and the father in this case was identified through a paternity test. A case manager informed him of the child’s eating needs, and he failed to demonstrate his ability to meet them. He was also required to attend the child’s medical appointments but failed to follow through. The father has not acquired the skills to care for the child and has not established that he is a fit parent. The court properly denied his request for visitation pending appeal. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 10, 2023, Case #: A-23-143, Categories: Evidence, Family Law, Guardianship
J. Bishop finds the Worker’s Compensation Court properly dismissed a machine operator’s claim for hand and arm numbness allegedly incurred during her employment with the Bimbo bakery. The employee failed to offer an expert medical opinion linking her injury to the employment. Statements offered were not authored by a physician and neither constitute medical history nor connect the injury to her employment. No record evidence is presented. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 10, 2023, Case #: A-22-981, Categories: Employment, Evidence, Workers' Compensation
J. Bishop finds the district court properly denied the mother’s request for grandparent visitation outside the United States for the children after granting joint physical custody, with the father receiving sole legal custody pursuant to the divorce decree. The court determined that the risk of the mother taking taking the children to Africa was “too substantial” considering her “previous noncompliance.” The mother also failed to assign other arguments as error. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 10, 2023, Case #: A-22-894, Categories: Evidence, Family Law, Guardianship
J. Welch finds the trial court properly convicted defendant for attempted assault after his no-contest plea agreement from charges of assault on a pregnant woman. The 62-year-old woman testified that after she heard her neighbor screaming, she observed defendant assaulting the pregnant neighbor by pulling her hair and punching her in the face. Defendant then struck the 62-year-old twice in the face with a closed fist, causing her to fall to the ground, where he kicked her ribs. The 62-year-old’s jaw needed emergency surgery because it was fractured in six places. All evidence supports the conviction, and the record shows that defendant’s plea was entered knowingly and voluntarily. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch, Filed On: October 3, 2023, Case #: A-23-142, Categories: Evidence, Assault
[Consolidated.] J. Arterburn finds the trial court properly convicted defendant by no contest plea for flight to avoid arrest, obstructing a peace officer, failure to appear on bond in another case, and to criminal mischief and domestic assault. Even if defendant’s claims of ineffective assistance were true, he was still not prejudiced by counsel’s performance. New charges which defendant says counsel failed to investigate were not considered by the court. The court considered defendant’s age, mentality, past criminal record and other relevant factors fully, noting that he had a lengthy criminal history and a history of failing to appear in court. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 3, 2023, Case #: A-22-910, Categories: Assault, Obstruction, Escape
J. Pirtle finds the district court properly affirmed defendant’s convictions for disturbing the peace, loitering and trespass for refusing to wear a mask at Office Depot during the Covid-19 pandemic. Video evidence shows defendant was agitated during the confrontation. The store manager testified that he “kept on calling [him] names” like “gay,” “fat,” “pussy” and “big ogre.” Defendant poked the manager in the chest and “sucker punched” him in the stomach. The evidence supports the conviction, and no abuse of discretion is found. Defendant has also failed to assign error to counsel’s allege deficient performance. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: October 3, 2023, Case #: A-23-027, Categories: Assault, Trespass, Loitering
J. Riedmann finds the trial court properly convicted defendant for DUI. Defendant was arrested after the officer responded to a call that he was drunk in a grocery store. The officer confronted defendant while sitting in his car, parked in a handicapped spot, with a strong odor of alcohol coming from the vehicle. Defendant said that he was “waiting until he could leave to go home.” His car keys were on the ground and defendant was forcefully removed after not responding to requests to exit the vehicle. All evidence supports the conviction. A driver’s permit that, when photocopied, displayed the word “VOID” was properly allowed. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann, Filed On: October 3, 2023, Case #: A-22-774, Categories: Evidence, Dui
J. Welch finds the trial court properly convicted defendant for sexual assault. The college freshman victim accused defendant of sexual assault occurring at a birthday party in a trailer park. A medical examination revealed signs of assault and defendant was arrested. All evidence, including witness testimony as well as DNA evidence supports the conviction. Challenges to evidence are not preserved for review. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch, Filed On: October 3, 2023, Case #: A-22-771, Categories: Dna, Evidence, Sex Offender
J. Arterburn finds the trial court properly convicted defendant for forgery, abuse of a vulnerable or senior adult, and attempted theft of over $5,000. All evidence supports the convictions on all counts. Defendant has numerous prior convictions including assault, strangulation, theft, terroristic threats and attempted abuse of a vulnerable adult. Even after having been previously convicted of victimizing the vulnerable adult, defendant continued to act with the purpose of depriving her of property. The sentences imposed are below the combined statutory maximum, particularly if the court had chosen to impose them consecutively. There is no abuse of discretion. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn, Filed On: October 3, 2023, Case #: A-23-026, Categories: Theft, Elder Abuse, Forgery
J. Bishop finds the trial court properly convicted defendant, by no contest plea, for sexual assault and child enticement of the 12-year-old, developmentally delayed girl. The girl disclosed that the defendant had picked her up from the side of the road and took her to his residence where he subjected her to penile vaginal penetration. It was within the sentencing court’s discretion to weigh factors supporting a lengthier sentence more heavily, such as the seriousness of the offense and the lasting impact on the young victim and her family. No abuse of discretion is found in the court’s imposing the 40-to-50-year consecutive sentences. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Bishop, Filed On: October 3, 2023, Case #: A-23-219, Categories: Sentencing, Sex Offender, Child Victims
J. Riedmann finds that the trial court properly convicted defendant, the victim's mother, for intentional child abuse and accessory to first-degree sexual assault of a child. The victim was 11 years old when the mother's husband began committing the assaults, which included full vaginal penetration. Though the mother was told this by her daughter, she allowed her husband to continue residing with the family. The victim became pregnant at the age of 12, which the mother addressed through abortion. Her husband continued residing with the family after this, and the abuse continued. The evidence is sufficient to support the conviction. However, the court committed plain error in sentencing defendant to a term of post-release supervision. Affirmed as modified.
Court: Nebraska Court Of Appeals, Judge: Riedmann , Filed On: September 26, 2023, Case #: A-22-896, Categories: Sex Offender, Child Victims, Accomplice Liability
J. Arterburn finds that the Worker's Compensation Court properly dismissed the employee's claim for benefits after she was injured by slipping on a floor she had just washed. Though she experienced pain requiring medication, she did not report the incident until months later. The employee failed to give Walmart notice “as soon as practicable” as required by relevant statute. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: September 26, 2023, Case #: A-23-044, Categories: Due Process, Workers' Compensation
J. Welch finds that the county court properly in part divided property, designated alimony, and ordered joint custody of the couple's children in a divorce decree. The husband did not show that student loan debt incurred by the wife, as well as home-improvement and credit card debt, was nonmarital. The husband's unvested military credits were conditionally divided, and rights were not determined with certainty. Certain hypotheticals are vacated and remanded. Affirmed in part.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: September 26, 2023, Case #: A-22-528, Categories: Family Law
J. Moore finds that the district court properly awarded custody of the children to the mother in a divorce. The court denied the father’s request for an interview of the children after the mother offered an affidavit stating that it was not in the children’s best interests. The affidavit noted that one child suffers from generalized anxiety disorder and had expressed an unwillingness to participate, which his therapist corroborated. The evidence supports the court's denial of the father's request for an interview, as well as the custody order. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore , Filed On: September 26, 2023, Case #: A-22-875, Categories: Family Law
J. Arterburn finds the trial court properly convicted defendant for possession of meth, sentencing her to two years of probation. Defendant, who was not part of the officers' investigation, consented to their search of the apartment she shared with the suspect after he had been arrested. Defendant consented to a search of her bedroom, where a pipe containing drug residue was found. All evidence supports the conviction and was properly allowed and entered. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Arterburn , Filed On: September 26, 2023, Case #: A-22-641, Categories: Drug Offender, Evidence, Search
J. Moore finds the trial court properly convicted defendant by plea agreement for contributing to the delinquency of a child and procuring alcohol for a minor. Defendant sent Facebook messages requesting to be reimbursed for alcohol and marijuana to the mother of the 15-year-old and 12-year-old for whom he made the purchases. The messages included videos of him drinking and smoking with the minors, evidence that supports the conviction. Defendant’s plea was made knowingly and voluntarily, and the record is insufficient to resolve the claim of ineffective assistance for counsel's failing to depose specific witnesses. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore , Filed On: September 19, 2023, Case #: A-23-345, Categories: Drug Offender, Evidence, Child Victims
J. Moore finds the juvenile court properly terminated the father's parental rights. The record shows that the father’s reintroduction into the children’s lives upon his release from prison would require therapy and interventions, as there is no bond between them. His plan to live with his father would limit his ability to regain custody as the home has not been approved for placement due to his father's criminal history. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore , Filed On: September 19, 2023, Case #: A-23-154, Categories: Family Law