Furstenfeld v. Pepin

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renovation was not exempt from the Act and that a licensed
architect was required to approve the submitted construction
plans under the applicable building code. We therefore reverse
the court’s order and so need not consider the appropriateness
of the granted relief.
R eversed.
Wright, J., participating on briefs.
Connolly and Stephan, JJ., not participating.
Justin S. Furstenfeld, appellant, v.
Lisa B. P epin, appellee.
___ N.W.2d ___
Filed December 13, 2013. No. S-13-122.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion independent of
the lower court’s decision.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdic-
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the tribunal from
which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may
be reviewed on appeal are (1) an order which affects a substantial right and
which determines the action and prevents a judgment, (2) an order affecting a
substantial right made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action after judgment
is rendered.
5. Actions: Statutes. “Special proceedings” include civil statutory remedies not
encompassed in chapter 25 of the Nebraska Revised Statutes.
6. Actions: Modification of Decree: Child Custody. Proceedings regarding modi-
fication of a marital dissolution, which are controlled by Neb. Rev. Stat. § 42-364
(Cum. Supp. 2012), are special proceedings, as are custody determinations, which
are also controlled by § 42-364.
7. Words and Phrases. A substantial right is an essential legal right, not a mere
technical right.
8. Final Orders: Appeal and Error. A substantial right is affected if the order
affects the subject matter of the litigation, such as diminishing a claim or defense
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that was available to an appellant prior to the order from which an appeal
is taken.
9. Pretrial Procedure: Final Orders: Appeal and Error. Discovery orders are
not generally subject to interlocutory appeal because the underlying litigation
is ongoing and the discovery order is not considered final. However, if the dis-
covery order affects a substantial right and was made in a special proceeding, it
is appealable.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Appeal dismissed.
Matt Catlett for appellant.
Terrance A. Poppe and Benjamin D. Kramer, of Morrow,
Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
In a proceeding commenced by Lisa B. Pepin to modify the
child custody and support provisions of a decree of dissolu-
tion, the district court for Lancaster County ordered Pepin’s
former spouse, Justin S. Furstenfeld, to obtain certain medi-
cal records from two health care providers located outside
Nebraska. The records were eventually to be provided to
Pepin. Furstenfeld appeals from that order. We conclude that
the order does not affect a substantial right and is therefore not
a final, appealable order.
BACKGROUND
In her amended complaint for modification of the dissolution
decree, Pepin alleged that there had been material changes in
circumstances involving Furstenfeld’s “emotional and mental
condition” and his “lifestyle and living arrangements” which
required a modification or suspension of his parenting time
with the couple’s minor child. She also alleged there had been
changes in Furstenfeld’s financial circumstances which neces-
sitated a modification of child support. Furstenfeld filed an
answer generally denying these allegations. He also filed a
counterclaim alleging Pepin had interfered with his exercise of
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his parenting time and relationship with the child, and request-
ing that sole custody be awarded to him. In his counterclaim,
Furstenfeld stated that he resided in Texas. Furstenfeld later
voluntarily dismissed the counterclaim.
During the pendency of the modification proceeding, Pepin
filed a “Motion for Order Releasing Medical Records.” The
motion stated that Furstenfeld had consented in a deposition
to Pepin’s review of his medical records but then refused to
sign releases which would enable Pepin to obtain his treat-
ment records from health care providers located in Texas and
Tennessee. Pepin alleged that the records were “necessary for
the upcoming trial on parenting time” and that the health care
providers would not release the records without a court order
or an authorization signed by Furstenfeld.
After conducting a hearing on the motion, the court entered
an order finding that Pepin had become aware of the medical
records “in the course of discovery,” that she had requested
production of the records by Furstenfeld, and that he had
responded by stating that he had no such records in his pos-
session or control. The court also found that because the two
health care providers were beyond its jurisdiction, there was no
mechanism for Pepin to obtain the records other than through
“suitable waivers and/or releases” executed by Furstenfeld. The
court ordered Furstenfeld to execute the documents necessary
to obtain the records from the facilities and to have the records
delivered to his attorney, who was then required to review
them and either provide copies to Pepin or file an appropriate
objection with the court. The court also ordered both parties
and their attorneys not to publicly disclose any information
contained in such records, other than through an offer as evi-
dence at trial.
Furstenfeld perfected a timely appeal from this order, which
we moved to our docket on our own motion pursuant to our
authority to regulate the caseloads of the appellate courts of
this state.1
1
See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2012).
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ASSIGNMENT OF ERROR
Furstenfeld contends, restated, that the district court had no
authority to order him to obtain the records from the health
care providers for eventual production to Pepin and therefore
erred in doing so.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.2
ANALYSIS
[2] 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.3 We therefore consider
the threshold question of whether the order challenged by
Furstenfeld is a final, appealable order over which we may
exercise appellate jurisdiction.
[3,4] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the tribunal
from which the appeal is taken.4 The three types of final
orders which may be reviewed on appeal are (1) an order
which affects a substantial right and which determines the
action and prevents a judgment, (2) an order affecting a sub-
stantial right made during a special proceeding, and (3) an
order affecting a substantial right made on summary applica-
tion in an action after judgment is rendered.5 The order in this
matter did not determine the action and prevent a judgment,
and it was not made on summary application in an action after
judgment was rendered. We therefore focus our inquiry on
whether it affected a substantial right and was made during a
special proceeding.
2
Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
3
Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013).
4
Steve S. v. Mary S., supra note 2.
5
Id.
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[5,6] “Special proceedings” include civil statutory rem-
edies not encompassed in chapter 25 of the Nebraska Revised
Statutes.6 Proceedings regarding modification of a marital dis-
solution, which are controlled by Neb. Rev. Stat. § 42-364
(Supp. 2013), are special proceedings, as are custody deter-
minations, which are also controlled by § 42-364.7 Thus, the
order from which Furstenfeld appeals was entered in a spe-
cial proceeding.
[7-9] A substantial right is an essential legal right, not a
mere technical right.8 A substantial right is affected if the order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant prior to
the order from which an appeal is taken.9 Here, although the
order at issue does not cite to any specific provision of the
Nebraska Court Rules of Discovery in Civil Cases,10 it is clear
that it was entered in response to a dispute which arose in the
course of pretrial discovery. The order recites that Furstenfeld’s
treatment at the two out-of-state facilities became known “in
the course of discovery” and that Pepin had served a request
for production of the medical records, to which Furstenfeld
had responded that the records were not in his possession or
control. This reflects the general procedure set forth in § 6-334
of the discovery rules for obtaining discovery in the form of
documents from an opposing party. Where, as here, this proce-
dure does not result in the requested production, the request-
ing party may seek an order of the court to compel discovery
pursuant to § 6-337. Although the district court did not cite this
rule as authority for its order, we conclude that it can be fairly
characterized as an order compelling discovery. Discovery
orders are not generally subject to interlocutory appeal because
the underlying litigation is ongoing and the discovery order is
6
See id.
7
Id.
8
Id.
9
Id.
10
Neb. Ct. R. Disc. §§ 6-301 to 6-337.
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not considered final.11 However, if the discovery order affects
a substantial right and was made in a special proceeding, it
is appealable.12
In two cases involving contested issues of parental fitness
for custody, we held that discovery orders did not affect a par-
ent’s substantial right and were therefore not appealable. In In
re Guardianship of Sophia M.,13 grandparents seeking appoint-
ment as guardians of their maternal granddaughter obtained
an order requiring the mother of the child to undergo a mental
examination. Although we concluded that the guardianship
proceeding constituted a special proceeding, we held that the
discovery order did not affect the mother’s substantial rights
because it did not diminish her ability to contest any adverse
results or present evidence of her own fitness to have custody
of the child. We further noted:
Although a mental examination, once ordered and per-
formed, cannot be undone, we are not convinced that any
harm caused by waiting to appeal the order until after
final judgment is sufficient to warrant an interlocutory
appeal. In contrast, allowing an interlocutory appeal in
this case promotes significant delay in the guardianship
proceedings and the ultimate resolution of [the minor
child’s] custody.14
We applied the same reasoning in Steven S. v. Mary S.,15 a
proceeding to modify the child custody provisions of a decree
of dissolution. We held that an order requiring the mother to
undergo a psychological examination requested by the father
to determine her parental fitness did not affect the mother’s
substantial rights and was therefore not appealable. And we
noted that “if warranted, an egregious error made by the court
11
Steven S. v. Mary S., supra note 2; In re Guardianship of Sophia M., 271
Neb. 133, 710 N.W.2d 312 (2006).
12
Id.
13
In re Guardianship of Sophia M., supra note 11.
14
Id. at 138, 710 N.W.2d at 317.
15
Steven S. v. Mary S., supra note 2.
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in ordering a mental examination could be challenged by the
aggrieved party in a mandamus action.”16
Also instructive on this issue is Schropp Indus. v. Washington
Cty. Atty.’s Ofc.,17 an appeal from an order in an ancillary dis-
covery proceeding which required a party to produce certain
documents. We held that neither the final order statute nor the
collateral order doctrine provided a basis for appellate jurisdic-
tion. Assuming without deciding that an ancillary discovery
proceeding was a special proceeding, we concluded that the
discovery order did not affect a substantial right because any
error could be “effectively vindicated in an appeal from the
final judgment.”18
Applying these principles, we conclude that the order requir-
ing Furstenfeld to obtain and produce the medical records did
not affect his substantial rights. The order does not impair his
ability to assert a privilege or object to the admissibility of the
records at trial. His claim that the court exceeded its authority
in ordering him to sign the authorizations necessary to obtain
the records can be preserved for resolution in any appeal from
the final judgment on the application for modification of cus-
tody and child support. And we note that the order specifically
requires that the records, once obtained, may be used by the
parties solely as evidence in this case. The order does not affect
a substantial right, and it is therefore not appealable.
CONCLUSION
For the reasons discussed, there is no final, appealable
order before us, and we therefore lack appellate jurisdiction.
Accordingly, we dismiss the appeal.
Appeal dismissed.
16
Id. at 132, 760 N.W.2d at 35.
17
Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152, 794 N.W.2d
685 (2011).
18
Id. at 159, 794 N.W.2d at 692.