State ex rel. Cooper v. Harmon

512 N.W.2d 656, 2 Neb. Ct. App. 612, 1994 Neb. App. LEXIS 59
CourtNebraska Court of Appeals
DecidedMarch 1, 1994
DocketNo. A-93-705
StatusPublished

This text of 512 N.W.2d 656 (State ex rel. Cooper v. Harmon) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Cooper v. Harmon, 512 N.W.2d 656, 2 Neb. Ct. App. 612, 1994 Neb. App. LEXIS 59 (Neb. Ct. App. 1994).

Opinion

Wright, Judge.

James Harmon appeals the order of the district court which determined he is the father of Nicholas Cooper and which ordered him to pay child support in the amount of $400 per month. We affirm.

SCOPE OF REVIEW

In filiation proceedings tried to the court without a jury, the findings of the trial court have the same effect as a jury verdict, and such findings will not be disturbed unless clearly wrong. Gregory v. Davis, 214 Neb. 408, 334 N.W.2d 1 (1983); State ex rel. Mooney v. Duer, 1 Neb. App. 84, 487 N.W.2d 575 (1992).

FACTS

The State of Nebraska, on behalf of Nicholas Cooper, a minor child, commenced this action against James Harmon pursuant to Neb. Rev. Stat. §§ 43-512.03 (Cum. Supp. 1992) and 43-1401 et seq. (Reissue 1988 & Cum. Supp. 1992). The mother, Catherine Cooper, testified that she had a sexual relationship with Harmon from June 1990 until approximately 1 month before the baby was born in July 1991. She denied having sexual relations with any other men during that time. The blood test results of the mother, child, and Harmon were received over Harmon’s objection. The report concluded: “JAMES C[.] HARMON, cannot be excluded as the biological father of the child, NICHOLAS COOPER, since they share genetic markers. Using the above systems, the probability of paternity is 99.99%, as compared to an untested, unrelated man of the North American Black population.”

A portion of Harmon’s deposition testimony was offered at trial as an admission against interest, in which he admitted having a sexual relationship with the mother, beginning about July 1990 and continuing to the end of September 1990. The [614]*614basis of Harmon’s objection to this testimony is not clear from the record. He had previously filed an objection to the State’s motion for genetic testing, arguing that the motion violated his constitutional rights. The district court subsequently ordered genetic testing and compelled Harmon to answer questions which he had refused to answer at his first deposition. At trial, Harmon’s counsel stated:

I should amplify the objection for the record, Your Honor. Previously, the respondent claimed his privilege under the Fifth Amendment and other — and other bases and reasons the Court overruled those objections on a prior occasion. I don’t want this record to indicate that Pm waiving those objections. I merely object to the receipt of those admissions.

Harmon’s answer was filed December 2, 1991. A request for a jury trial was not filed until February 9,1993.

At trial, Harmon did not appear, but was represented by his attorney. Upon receipt of the evidence, the court found that Harmon is the father of the child and owes a corresponding duty to provide financial support. He was ordered to pay child support in the amount of $400 per month commencing August 1, 1993, and to exercise any option for health and hospitalization insurance or health maintenance plan coverage which may become available to him through an employer or other organization.

ANALYSIS

Harmon asserts that the court erred in requiring him to answer deposition questions regarding his sexual relations with the mother. He relies upon Neb. Rev. Stat. § 25-1210 (Reissue 1989), which provides: “When the matter sought to be elicited would tend to render the witness criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as provided in section 25-1214.” Neb. Rev. Stat. § 25-1214 (Reissue 1964) has been repealed. See 1975 Neb. Laws, L.B. 279,§ 75.

Since this is not a criminal proceeding, we consider whether the questions would expose Harmon to public ignominy. Obviously, the question of whether Harmon had sexual [615]*615relations with the mother is relevant evidence. The relationship between Harmon and the mother makes the existence of paternity more probable than it would be without the evidence. See State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

“All relevant evidence is admissible except as otherwise provided by ... the Legislature . . . .” Neb. Rev. Stat. § 27-402 (Reissue 1989). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Neb. Rev. Stat. § 27-403 (Reissue 1989). Here, the issue is whether Harmon is the father of the child. We find that § 25-1210 has no application to this case and that Harmon was properly compelled to answer the questions.

The Minnesota Court of Appeals has held that the ultimate issue in a paternity case is whether the putative father is the actual father of the child. “Relevant evidence of paternity includes evidence of sexual intercourse between the mother and alleged father at any possible time of conception and the results of blood testing.” Weihe v. Hendley, 389 N.W.2d 754, 756 (Minn. App. 1986). We agree with this statement and find that there was no error in the trial court’s requiring Harmon to answer questions concerning his sexual relationship with the mother and the admission of the testimony as an admission against interest.

Harmon also contends that the trial court erred by denying him a trial by jury. Section 43-1412 provides in part:

The method of trial shall be the same as that in other civil proceedings, except that the trial shall be by the court without a jury unless a jury is requested (1) by the alleged father, in a proceeding instituted by the mother as the guardian or next friend, or (2) by the mother, in a proceeding instituted by the alleged father.

An appellate court has authority to take judicial notice of local court rules which are properly filed with the appellate court. State ex rel. Ward v. Pape, 237 Neb. 283, 465 N.W.2d 760 (1991). The applicable Douglas County District Court rule states that a paternity case shall be tried without a jury unless the alleged father includes in his answer a request for a jury trial. Fourth Jud. Dist. R. of Prac. 12L (rev. May 1993). Harmon’s answer was filed in 1991, and he did not file a request [616]*616or demand for a jury trial until 1993. We find that Harmon’s request for a jury trial was not timely and did not comply with the above rule. The trial court did not err in refusing Harmon’s request for a jury trial.

Harmon asserts that the trial court erred in overruling his objection to genetic testing. This assignment of error is not discussed in his brief, and an appellate court will not consider assignments of error which are not discussed in the brief. Brewer v. Brewer, 244 Neb.

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Related

State Ex Rel. Ward v. Pape
465 N.W.2d 760 (Nebraska Supreme Court, 1991)
Brewer v. Brewer
509 N.W.2d 10 (Nebraska Supreme Court, 1993)
VonSeggern v. Willman
508 N.W.2d 261 (Nebraska Supreme Court, 1993)
Weihe v. Hendley
389 N.W.2d 754 (Court of Appeals of Minnesota, 1986)
Gregory v. Davis
334 N.W.2d 1 (Nebraska Supreme Court, 1983)
State Ex Rel. Mooney v. Duer
487 N.W.2d 575 (Nebraska Court of Appeals, 1992)
State v. Thompson
507 N.W.2d 253 (Nebraska Supreme Court, 1993)

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Bluebook (online)
512 N.W.2d 656, 2 Neb. Ct. App. 612, 1994 Neb. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cooper-v-harmon-nebctapp-1994.