Summary
The Nebraska Supreme Court considered whether an order requiring a parent to obtain and produce out-of-state medical records in a child custody and support modification proceeding was a final, appealable order. The court held that the discovery order did not affect a substantial right, was not appealable, and dismissed the appeal for lack of appellate jurisdiction.
Topics
Practice areas
Questions Presented
- Whether the Nebraska Supreme Court had appellate jurisdiction over an order compelling Furstenfeld to obtain and produce medical records during a proceeding to modify child custody and child support.
- Whether the discovery order affected a substantial right so as to constitute a final, appealable order entered during a special proceeding.
Holdings
- An appellate court must independently determine whether it has jurisdiction over an appeal, even when the parties do not raise the jurisdictional issue.
- Proceedings to modify a marital dissolution decree and custody determinations governed by Neb. Rev. Stat. § 42-364 are special proceedings.
- The order requiring Furstenfeld to obtain and produce medical records did not affect a substantial right and therefore was not a final, appealable order.
Key quotations
“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, irrespective of whether the issue is raised by the parties.” (15)
“Discovery orders are not generally subject to interlocutory appeal because the underlying litigation is ongoing and the discovery order is not considered final.” (17)
“The order does not affect a substantial right, and it is therefore not appealable.” (18)
Factual background
Pepin sought modification of the parties' dissolution decree based on alleged changes in Furstenfeld's emotional and mental condition, lifestyle and living arrangements, and financial circumstances. During the modification proceeding, Pepin sought medical records from health care providers in Texas and Tennessee after Furstenfeld allegedly refused to sign releases. The district court ordered Furstenfeld to execute the releases and directed that the records be provided to his attorney for review and possible production to Pepin, subject to restrictions on public disclosure.
Procedural history
Pepin commenced a proceeding to modify the custody and support provisions of the parties' dissolution decree and sought an order requiring Furstenfeld to release medical records. After a hearing, the Lancaster County District Court ordered Furstenfeld to execute the necessary releases, obtain the records, and deliver them to his attorney for review and possible production to Pepin. Furstenfeld timely appealed, and the Nebraska Supreme Court moved the appeal to its docket on its own motion. The Supreme Court dismissed the appeal for lack of appellate jurisdiction because the discovery order was not a final, appealable order.