*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 10/28/96

TENTH CIRCUIT

ROSEMARIE BRETSCHNEIDER,

Plaintiff-Appellant,

v.

FRANK EUGENE BROWN, and

UNITED STATES DEPARTMENT

OF THE ARMY,

Defendants-Appellees.

Nos. 96-7020 & 95-7174

(D.C. No. CV-95-274-B)

(E. Dist. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.
1We also deny all pending motions as moot.

-2-

Rosemarie Bretschneider brought this action pro se against Frank Eugene

Brown and the Department of the Army. Mr. Brown is the father of a son born to

Ms. Bretschneider in Germany in 1960 while Mr. Brown was stationed there with

the armed forces. Although Mr. Brown was determined to be the father by the

German courts and was ordered to pay child support until the son reached

eighteen years of age, he failed to do so. Ms. Bretschneider now seeks to recover

compensatory and punitive damages from Mr. Brown, a declaration that her son is

Mr. Brown’s heir, and compensatory and punitive damages from the Army for its

alleged conspiracy with Mr. Brown to evade his child support obligations. 

The district court held that dismissal of the claims against Mr. Brown was

appropriate both on the basis of the domestic relations exception to diversity

jurisdiction, and because the statute of limitations had expired. The court

concluded that dismissal against the Army was appropriate both because Ms.

Bretschneider had failed to comply with the administrative filing requirement of

the Federal Tort Claims Act, and because the claims arose in a foreign country

and therefore cannot be pursued under the Act. We have carefully reviewed the

thorough and well-reasoned opinion of the district court, and we are in substantial

agreement with its analysis and authorities. Accordingly, we affirm the dismissal

of the claims against Mr. Brown and the Army.1
-3-

Ms. Bretschneider filed a motion to join her daughter Barbara Schwarz to

represent the interests of Ms. Bretschneider’s children. Ms. Schwarz sought

damages for herself and her siblings, who allegedly suffered throughout their

lives as a result of their childhood poverty, which in turn was allegedly caused by

Mr. Brown’s failure to pay child support. The district court denied the motion to

join on the basis that it would serve no useful purpose in light of the derivative

nature of Ms. Schwarz’ claims and the order dismissing the mother’s claims. We

agree.

Finally, in a separate appeal which we have consolidated with the appeal on

the merits, Ms. Bretschneider challenges the district court’s denial of her motion

for recusal. Ms. Bretschneider’s motion, which was untimely, was based upon

unsubstantiated allegations and adverse rulings. The district court therefore did

not abuse its discretion in refusing to recuse. See Willner v. University of

Kansas, 848 F.2d 1023 (10th Cir. 1988), cert. denied, 488 U.S. 1031 (1989).

AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge