Tuesday, November 08, 2005

Custody dispute in County Court guardianship proceedings remanded where court reporter's tape recording machine malfunctioned and appellate court cannot determine whether father properly objected to continued jurisdiction of county court while a divorce action in district court was pending; although divorce courts have priority over county guardianship proceedings, the parent must object to continued county court jurisdiction, Neb.App. cant tell whether father made proper objection and thus remands case to County Court. In re Guardianship of Breeahana C., 14 Neb. App. 182 Filed November 8, 2005. No. A-04-1361. Bobby C. appeals the order of the county court for Sherman County appointing Kayla N. and Tony N. as permanent coguardians of Breeahana C., the daughter of Bobby and Alicia C. The record is insufficient for us to determine whether Bobby alleged in county court that the county court's exercise of jurisdiction was an abuse of discretion because Alicia's petition for dissolution of marriage was under the jurisdiction of the district court. Therefore, we remand this matter to the county court with directions to vacate the appointment of coguardians and to conduct a new hearing on the matter. Court reporter discovered that after the guardians offered the divorce decree, the recorder was not functioning, the reporter noted that the father did not object to the decree; appellate court disapproves of this "fill in the blank" procedure Regardless of the court stenographer's efforts to "fill in the blanks" and the county court's approval of that approach, the record before us does not constitute a verbatim record of the evidence offered at trial. It is inevitable that technical difficulties will arise occasionally, but the better approach in this case would have been that upon discovery of the malfunction, the court reporter notify the trial judge of the difficulty with the tape recorder and the judge, with any necessary assistance of the reporter, determine the point at which the tape recorder malfunctioned and, after the proper function of the tape recorder was restored, direct the parties to continue their presentation of evidence from that point forward, repeating the omitted content. The bill of exceptions, while deficient in recording the full extent of the evidence, does memorialize that exhibit 1 was offered and received without objection, and none of the parties quarrel with that fact. Therefore, we will consider the divorce decree as an exhibit, recognizing that "'[a] bill of exceptions duly allowed and certified by the trial judge imports absolute verity and its truthfulness cannot be assailed collaterally.'" Bors v. McGowan, 159 Neb. 790, 795, 68 N.W.2d 596, 600 (1955), quoting Gregory v. Kaar, 36 Neb. 533, 54 N.W. 859 (1893). ... Whether father objected to county court jurisdiction is critical to power of county court to have appointed permanent guardians The Supreme Court in In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996) implicitly held that the county court's subject matter jurisdiction over guardianship proceedings was not vitiated by the district court's divorce decree; rather, the county court should have declined to exercise such jurisdiction. " the defect in the verbatim record becomes critical. While Bobby did not raise the issue before the county court in the proceedings that were preserved, because of the "lost" portion, we are unable to determine whether Bobby raised the issue in the county court. Such a flaw in the record can only be remedied by a new hearing, at which the issue suggested by In re Guardianship of Zyla, supra, might be raised and considered. :

No comments: