* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.1 We 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. Brow n was stationed there with the armed forces. Although Mr. Brown was determine d 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. Bre tschneider now seeks to recover compensatory and punitive damages from Mr. Brown, adeclaration that her son is Mr. Brown’s heir, and compensatory and punitive dam ages from the Army for its alleged conspiracy with Mr. Brown to evade his chil d support obligations. The district court held that dismissal of the claim s against Mr. Brown was appropriate both on the basis of the domestic relat ions exception to diversity jurisdiction, and because the statute of limitation s had expired. The court concluded that dismissal against the Army was appro priate both because Ms. Bretschneider had failed to comply with the adminis trative 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. Accor dingly, we affirm the dismissal of the claims against Mr. Brown and the Army. 1-3-

Ms. Bretschneider filed a motion to join her daught er Barbara Schwarz to represent the interests of Ms. Bretschneider’s chil dren. Ms. Schwarz sought damages for herself and her siblings, who allegedlysuffered 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 dismiss ing the mother’s claims. We agree. Finally, in a separate appeal which we have consoli dated with the appeal on the merits, Ms. Bretschneider challenges the distri ct court’s denial of her motion for recusal. Ms. Bretschneider’s motion, which was untimely, was based upon unsubstantiated allegations and adverse rulings. T he district court therefore did not abuse its discretion in refusing to recuse. Se e 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