Drake v. Allen

• Decision Date: 12 July 2022
• Docket Number: A-21-634
• Parties: Heather A. Drake, appellee, v. Dale L. Allen II, appellant.
• Court: Court of Appeals of Nebraska

Heather A. Drake, appellee,
v.
Dale L. Allen II, appellant.

No. A-21-634

Court of Appeals of Nebraska

July 12, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Platte County: Robert R. Steinke, Judge.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

No appearance for appellee.

Moore, Riedmann, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Dale L. Allen appeals the order of the district court for Platte County confirming the registration of a foreign support order. Allen alleges that the district court did not have the jurisdiction to confirm the registration, that the court improperly received an exhibit over his hearsay objection, and that he was not served in the original child support action. For the reasons contained herein, we affirm.

STATEMENT OF FACTS

On October 26, 2020, the clerk of the district court entered a notice of registration of a parentage and child support order entered in Oklahoma on April 22, 2014. Attached to the notice of registration was a transmittal request from the Oklahoma Department of Human Services to the Nebraska Central Registry concerning Allen's child support obligation; the support order directed to Allen and issued by Oklahoma's Office of Administrative Hearings; and Allen's child support

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payment record from the State of Oklahoma. We note that the payment record included in the registration was unsigned and uncertified.

On November 4, 2020, Allen filed a request for hearing pursuant to Neb. Rev. Stat. § 42-741 (Reissue 2016) to contest and vacate the notice of registration of order. Allen's request also specifically asserted defenses set forth in Neb. Rev. Stat. § 42-742(a)(1), (a)(2), and (a)(5) (Reissue 2016).

An evidentiary hearing was held on January 11, 2021. Allen did not appear, but his counsel offered two affidavits; one authored by Allen and another by Allen's girlfriend in 2014. Both affidavits stated that Allen was in Nebraska on March 12, 2014, and thus could not have been served with process in Oklahoma on that date. The affidavits were received without objection.

The State called Rebecca Zulkoski, a child support enforcement worker for the Platte County attorney's office. Zulkoski testified that she received a request from the Nebraska Central Office registry to register an Oklahoma support order related to Allen. Zulkoski filed the request to register with the district court. Zulkoski identified the exhibits that were also filed with the notice of registration in district court, including the transmittal request from the Oklahoma Department of Human Services to the Nebraska Central Registry; the support order issued by Oklahoma's Office of Administrative Hearings; and a child support payment record from the State of Oklahoma. The transmittal letter and foreign order were received without objection. Allen objected to the payment record as evidence that Allen had notice of the Oklahoma order. The payment record was received as evidence of child support payments received and amounts accrued.

Zulkoski was also asked to identify an affidavit of service, which reflected that Allen had been served in the original child support action at an address in Oklahoma City on March 12, 2014. Zulkoski requested the affidavit of service from Allen's Oklahoma caseworker after Allen called Zulkoski and reported that he had never been served in the original action. Allen objected to the service processor's affidavit on the basis of hearsay and the district court took the exhibit under advisement. While Allen did not object to the affidavit's authentication, we observe that the affidavit is neither notarized nor certified.

The evidentiary hearing was continued to February 25, 2021. The State again called Zulkoski. Zulkoski testified that following the January 11 hearing, the State requested that she obtain a certified copy of the affidavit of service from Allen's Oklahoma caseworker. However, the caseworker informed Zulkoski that she could not obtain a certified copy of the affidavit of service because the proceeding had been administrative, rather than judicial. However, the caseworker did provide Zulkoski with a certified copy of the order for support and a certified copy of the payment record, as both documents were a part of the administrative court file. Both documents were offered.

The certified copy of the order for support was received by the court without objection, however Allen objected to the reoffered copy of the payment record because it "look[ed] like a copy," and because the record was not relevant to whether Allen was ever served. The district court noted that the payment record did not seem to bear a seal which the court could feel, but took the objection to the record under advisement.

Allen then presented testimony on his own behalf. He testified that in 2014, between Valentine's Day and April 1, he was residing with a girlfriend in Lincoln, Nebraska. During this

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time period, Allen only traveled to Oklahoma on weekends to exercise visitation with his children who resided there. Allen claimed he was not in Oklahoma between Monday and Thursday, from February 2014 to April. He further testified that he had never been served with process related to the original child support action in this case.

However, during Allen's cross examination, he conceded that he had appeared at court hearings in Oklahoma in an unrelated matter on weekdays. Specifically, Allen had appeared in Oklahoma on Thursday, February 6; Thursday, March 13; and Tuesday, April 1. Upon the district court's specific questioning, Allen also testified that he was familiar with the address listed on the affidavit of service. He identified the address as the home of his friend's mother and noted that he "spent a lot of time at the house on the weekends."

Allen's former girlfriend, with whom he lived in early 2014, provided testimony which was consistent with Allen's.

On March 19, 2021, the district court entered an order confirming registration. The court found that the certified copy of the payment record would be received over Allen's objection. However, the payment record was received only for the purpose of "establishing that there is a child support arrearage as reflected by the Oklahoma records."

The district court further noted that while the affidavit of service was not certified, testimony was offered to show that Oklahoma officials were unable to provide a certified copy due to the administrative nature of the proceedings. Additionally, the affidavit bears a file stamp dated April 12, 2014, from the Oklahoma Office of Administrative Hearings. Because the caption and case number on the affidavit were consistent with other documents filed in Oklahoma in the original action, the court found the affidavit to be properly recorded and that there was no reasonable suspicion regarding its authenticity. Thus, the affidavit of service was received. The court did not address Allen's hearsay objection.

After makings its evidentiary findings, the district court concluded that Allen had failed to meet his burden of proving one or more of the defenses set forth in § 42-742(a). The court noted that while Allen had testified that he was not in Oklahoma on the date listed in the affidavit of service, March 12, 2014, on cross examination it "was established that [Allen] might be a bit mistaken. . . ." Further, Allen testified that he was familiar with the address identified on the affidavit of service. Because Allen could not prove a defense, the court confirmed the registration of the foreign support order.

Allen appeals.

ASSIGNMENTS OF ERROR

Allen assigns, reordered and restated, that the district court erred by (1) finding it had jurisdiction to confirm the registration, as the statutory registration procedures were not followed; (2) receiving an exhibit over Allen's hearsay objection; and (3) finding that Allen had been properly served in the original action.

STANDARD OF REVIEW

When a...