Opinion
No. A-10-833.
10-04-2011
Justesen v. Justesen Jeanna F. Justesen, appellee, v. Kurt D. Justesen, appellant.
Matthew Stuart Higgins for appellant. John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellee.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed.
Matthew Stuart Higgins for appellant.
John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellee.
Irwin, Cassel, and Pirtle, Judges.
Irwin, Judge.
I. INTRODUCTION
Kurt D. Justesen appeals a dissolution of marriage decree entered by the district court for Sarpy County, Nebraska, dissolving his marriage to Jeanna F. Justesen. On appeal, Kurt challenges the court's excluding proffered testimony and ordering the parties to file a joint federal tax return. We affirm.
II. BACKGROUND
The parties were married in 2005. At the time, Jeanna was the parent of three children from a previous marriage. The parties underwent fertility treatments and eventually became the parents of twins, born in April 2008.
In January 2009, Kurt moved out of the parties' marital residence. In February 2009, Jeanna filed a complaint seeking dissolution of the parties' marriage and seeking custody of the minor children.
Prior to trial, the parties mediated a partial parenting plan. Trial on the complaint for dissolution was held in May 2010, and the district court entered an order of dissolution in July 2010. In the decree, the court awarded joint custody of the minor children, with Jeanna being awarded primary custody subject to Kurt's rights of visitation. The court set forth specific parenting responsibilities for the parties and also incorporated the partial parenting plan that the parties had previously mediated. In setting out the parenting responsibilities, the court specifically ordered that "[t]he non-custodial parent shall pick up the children from the custodial parent at the beginning of each parenting time period and return the children to the custodial parent at the end of each parenting time period." The partial parenting plan, incorporated and attached to the decree, provided that "[t]he party whose parenting time is ending shall be responsible for transportation of the children." The court also ordered that the parties file a joint federal tax return for the year 2009.
Kurt filed a motion for new trial or for reconsideration, in which he challenged the court's decree concerning custody and reduction of his parenting time as compared to temporary orders that had been entered during the pendency of the trial and the court's conflicting orders concerning transportation costs associated with his visitation with the children. The district court denied the order without making any additional findings. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Kurt has assigned five errors, but we conclude that only two of them are properly before us. Kurt asserts that the district court erred in excluding proffered testimony concerning Jeanna's parenting and ordering the parties to file a joint federal tax return for the year 2009.
In addition, Kurt has assigned three other errors that, for reasons discussed below, we conclude are not properly before us for disposition. These assignments of error include that the district court erred in modifying a temporary order during a telephonic hearing, in denying Kurt's motion for new trial, and in entering an order modifying the decree while the case is on appeal to this court.
IV. ANALYSIS
1. ASSIGNED ERRORS NOT PROPERLY BEFORE US
We first note that several of Kurt's assignments of error are not properly before this court for disposition. First, Kurt's assignments of error concerning the court's alleged modification of a temporary order during a telephonic hearing prior to trial and concerning the court's denial of Kurt's motion for new trial have been assigned as error, but were not addressed in the argument portion of his brief. Consideration of alleged errors in this court is limited to those errors that are both assigned and discussed in the argument section of the brief on appeal. See Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2008). To be considered by an appellate court, an alleged error must be both specifically assigned and argued in the brief of the party assigning the error. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); State v. Meduna, 18 Neb. App. 818, 794 N.W.2d 160 (2011).
Second, although Kurt has assigned as error that the district court committed error when it "[e]nter[ed] an Order amending the Decree of Dissolution while the court's decision is on appeal and where that Decree and the Order are both inconsistent with the Parenting Plan stipulated to by the parties and endorsed by the court," no such order appears in the record presented to us on appeal. In his brief, Kurt argues that the court granted "Jeanna's Motion for Child Support and Parenting Time pending appeal" and that such order is the one complained of in this assignment of error, but he has not made any such order a part of the record presented to this court. Putting aside the question of whether such a temporary order entered while the case is on appeal could otherwise be properly reviewable, an issue we need not determine, the specific order challenged by Kurt cannot be reviewed because we have no record concerning the motion, the proceedings, or the order Kurt is complaining of. It should be axiomatic that we cannot review and make findings concerning alleged proceedings and orders that are not actually presented to us in the record.
2. EXCLUSION OF PROFFERED TESTIMONY
Kurt first assigns as error that the district court erred in sustaining objections to questions asked by Kurt's counsel of Jeanna during her testimony. Kurt asserts on appeal that he was attempting to offer evidence by way of testimony and documentary evidence of Jeanna's parenting history concerning the children of her prior marriage and that the evidence was relevant to her ability to parent the parties' children and her likelihood of being a cooperative custodial parent. He asserts that the district court abused its discretion in excluding the evidence.
Neb. Rev. Stat. § 27-103 (Reissue 2008) provides that error may not be predicated upon a ruling admitting or excluding evidence unless a substantial right of the party is affected and, in case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked. The Nebraska Supreme Court has also iterated that to predicate error on a ruling of the trial court refusing to permit a witness to testify or answer a specific question, the record must show an offer to prove the facts sought to be elicited. Sturzenegger v. Father Flanagan's Boy's Home, 276 Neb. 327, 754 N.W.2d 406 (2008).
Kurt elicited testimony from Jeanna's 19-year-old son suggesting that he saw his father, Jeanna's first husband, only occasionally at holidays or whenever the son "decided to go over and see him." The son testified that Jeanna told him it was "up to [him], however [he] felt about it" and that she "didn't discourage it, she -- just she hoped it worked out well." He testified that the "attitude" toward him having visitation with his father "[p]retty much the whole time [he was] a teenager" was that he "could if [he] wanted to."
During Jeanna's testimony, Kurt asked her if it was true that she had not been "forcing" the children of the first marriage to go to visitation with their father, and Jeanna testified that the situation with her first husband was "a complete different situation" involving "abuse, mentally and physically," and that her first husband "had his custody rights taken from him by the court." Kurt then asked Jeanna what the custody order with her first husband had been for the prior 5 years, and the district court sustained the objection.
Kurt did not make an offer of proof concerning what the prior custody and visitation order would have provided. Kurt's counsel responded to the objection by arguing that Kurt was going to testify that he heard and saw what Jeanna "did and how she interacted with [her first husband]" and that he was attempting to establish "what was the custody order . . . and was it complied with," and argued that "her track record as a mother and somebody who needs to comply with court orders is something that may have some relevance." Kurt did not suggest to the court that the prior custody order required her to force her 19-year-old son to see his father, that Jeanna had somehow willfully failed to comply with the order, or that any actions she may have taken concerning the order were either indicative of parenting skills or reflective of how she might respond to a custody and visitation order in the present case.
Kurt argues on appeal that evidence of her past parenting was relevant and that her history of noncompliance with court orders and tendency to not cooperate in effecting the court's orders was relevant. The problem with Kurt's assertion is that he did not make an offer of proof at trial to demonstrate that, if the objection was overruled, the testimony to be elicited would have demonstrated relevant past parenting, a history of noncompliance with court orders, or a tendency to not cooperate in effecting the court's orders. Establishing that she encouraged her 19-year-old son to visit his father if he wanted to and that she did not discourage it does not amount to an offer of proof that the custody and visitation order required more or that her actions were in contravention of it. It would have been a simple matter for Kurt's counsel to comply with § 27-103 and make a simple offer of proof that would have allowed us to assess the potential relevance of the excluded testimony and whether there was any abuse of discretion in the court's disallowance of it. In addition, we note that Kurt has not assigned any errors concerning the court's custody or parenting time rulings; as such, he has not actually challenged the correctness of the very rulings to which he asserts this testimony would have been relevant.
We conclude that Kurt failed to make an offer of proof and that the substance of the proffered testimony was not apparent from the context of the questioning. As such, Kurt failed to properly preserve this allegation of error to obtain relief on appeal. We find no merit to this assignment of error.
3. ORDERING OF JOINT FILING OF 2009 FEDERAL TAX RETURN
Kurt next asserts that the district court erred in compelling Kurt to sign and file a joint federal tax return for the year 2009. He argues that such a compulsion contravenes federal law, which confers a right of election whether to file jointly or separately and implicates an array of potential consequences, including criminal liability, for any erroneous representations by the other joint party.
This court recently addressed the same issue raised by Kurt, in Bock v. Dalbey, 19 Neb. App. 210, _N.W.2d_(2011). In that case, we rejected the contention that federal law precludes state trial courts from ordering the joint filing of tax returns in dissolution of marriage actions. We expressly held that it is within the discretion of the trial court in a dissolution of marriage proceeding to order joint filing of income tax returns. Id.
In the present case, we find no abuse of discretion evident on the record. We note that Kurt did not even testify concerning the tax returns, and the question of the proper filing status was not a focal point at the trial; indeed, the only testimony evident on the matter was that of Jeanna indicating that she believed the parties had agreed to file jointly for the year in question. There was no showing of financial benefits associated with filing jointly or separately, no evidence of either party's having filed fraudulent returns in the past, or any principled reason for filing separately under the circumstances. See id. As such, we find no reversible error in the court's ordering of a joint filing in this case.
V. CONCLUSION
We find that several of Kurt's assignments of error have not been properly presented in this court for review. We find no merit to Kurt's assertion that the district court erred in excluding proffered testimony, because we conclude that Kurt failed to make an appropriate offer of proof concerning the excluded testimony. We find no merit to Kurt's assertion that the court erred in ordering the parties to file a joint tax return. As such, we affirm.
Affirmed.