840 N.W.2d 862
Neb.2013Background
- Pepin filed to modify custody and support under Neb. Rev. Stat. § 42-364, alleging changes in Furstenfeld’s mental condition, lifestyle, and finances that warranted modifying parenting time and support.
- Furstenfeld (resident of Texas) denied the allegations and initially counterclaimed for sole custody, later voluntarily dismissing that counterclaim.
- During discovery Pepin learned of out-of-state (Texas and Tennessee) medical treatment and requested Furstenfeld’s medical records; he refused to sign releases and claimed the records were not in his possession or control.
- The Lancaster County district court ordered Furstenfeld to execute authorizations so the providers would deliver the records to his attorney, who would then either produce them to Pepin or lodge objections; the order limited use of the records to evidence in the case and prohibited public disclosure.
- Furstenfeld appealed the discovery order; the Nebraska Supreme Court considered whether the order was a final, appealable order affecting a substantial right and therefore whether it had jurisdiction.
Issues
| Issue | Pepin's Argument | Furstenfeld's Argument | Held |
|---|---|---|---|
| Whether the district court had authority to order Furstenfeld to obtain out-of-state medical records and whether that order is immediately appealable | Pepin argued the records were necessary for the upcoming parenting-time trial and she needed the court to compel compliance because providers required releases | Furstenfeld argued the court exceeded its authority by ordering him to obtain records from out-of-state providers and that he should not be compelled to sign authorizations | The order is a discovery compulsion entered in a special proceeding but does not affect a substantial right; it is not a final, appealable order, so the appeal was dismissed |
Key Cases Cited
- Steven S. v. Mary S., 277 Neb. 124 (Neb. 2009) (discovery order requiring psychological exam in custody-modification case did not affect a substantial right and was not appealable)
- In re Guardianship of Sophia M., 271 Neb. 133 (Neb. 2006) (order for mental examination in guardianship was not appealable because it did not impair the parent’s ability to contest fitness at trial)
- Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152 (Neb. 2011) (ancillary discovery order compelling document production did not affect a substantial right; error could be vindicated on appeal from final judgment)