Ojeda v. Wanek ( 2024 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
OJEDA V. WANEK
NOTICE: 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).
RAQUEL OJEDA, APPELLEE,
V.
CHAD WANEK, APPELLANT, STATE OF NEBRASKA, APPELLEE,
AND BRYANNA PRUDHOME, INTERVENOR-APPELLEE.
Filed October 29, 2024. No. A-23-998.
Appeal from the District Court for Otoe County: JULIE D. SMITH, Judge. Appeal dismissed.
Justin A. Quinn for appellant.
Hannah E. Frankel, of Dornan, Troia, Howard, Breitkreutz, Dahlquist & Klein, P.C.,
L.L.O., for intervenor-appellee Bryanna Prudhomme.
RIEDMANN, Chief Judge, and MOORE and BISHOP, Judges.
MOORE, Judge.
INTRODUCTION
The father appeals from an order of the district court for Otoe County denying his motions
to dismiss a step-grandmother’s complaint for leave to intervene as a person standing in loco
parentis in a custody proceeding brought by the father. The court found that the step-grandmother’s
complaint did not fail to state a claim for which relief can be granted, and it granted her motion to
intervene. Because the order granting the motion to intervene is not a final, appealable order, we
dismiss the appeal for lack of jurisdiction.
STATEMENT OF FACTS
Raquel Ojeda and Chad Wanek are the biological parents of two minor children. Ojeda
died in September 2023 following a cancer diagnosis. Approximately a week after Ojeda’s death,
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Wanek filed a complaint to modify, seeking sole legal and physical custody of the children.
Wanek’s complaint referenced a decree of paternity entered in August 2017 and a previous
modification order entered in August 2018, though these orders do not appear in our record on
appeal. Wanek alleged that Ojeda’s death was a material change in circumstances and that an
award of sole custody to him was in the best interests of the children.
Bryanna Prudhome then filed a complaint for leave to intervene. The complaint alleged
that Prudhome was the biological mother of Derek Powell, and that Powell and Ojeda had married
in March 2023 and remained married until Ojeda’s death in September. Powell and Ojeda had
been a couple for 8 years prior to their marriage. During this time, Prudhome alleged that she
developed a typical grandparent/grandchild relationship with Ojeda’s minor children. The
complaint asserted that the children had spent time in Prudhome’s home for family dinners,
sleepovers, holidays, birthdays, and other quality time together. Prudhome claimed that Ojeda,
Powell, and the children had also lived intermittently with Prudhome over the past 8 years.
Prudhome alleged that she had a strong emotional bond with the children.
Prudhome’s complaint alleged details regarding the children’s custody arrangement.
According to Prudhome, the 2017 decree of paternity awarded Ojeda and Wanek joint legal
custody of the minor children, with Ojeda having sole physical custody of the children, subject to
Wanek’s reasonable right to parenting time. The 2018 modification order awarded Ojeda sole legal
and physical custody of the minor children. Wanek was awarded agency supervised parenting time
every other Saturday and every other Wednesday evening. The complaint alleged that Wanek has
not had contact with the children since Thanksgiving 2022 and that he had never been a primary
caregiver.
Prudhome alleged that Ojeda and the children moved into her home indefinitely in March
2023 following Ojeda’s cancer diagnosis and, since then, Prudhome had been solely responsible
for the children’s academic, emotional, physical, and mental needs. Prudhome asserted that by
assuming such responsibilities, she now stood in loco parentis of the children and that it was in the
children’s best interests that she be allowed to intervene in the pending custody matter.
A notarized delegation of guardianship, dated September 2, 2023, and signed by both Ojeda
and Prudhome, was attached to Prudhome’s complaint. The delegation of guardianship named
Prudhome as legal guardian of the minor children in the case of Ojeda’s death or incapacity and
was executed 5 days prior to Ojeda’s death.
On October 3, 2023, Wanek filed a motion to dismiss Prudhome’s complaint pursuant to
Neb. Ct. R. Pldg. § 6-1112(b)(6) for failing to state a claim for which relief can be granted. The
motion alleged that Prudhome’s complaint was “suspicious on its face for being brought by the
Grandparent of Raquel’s spouse Derek Powell, and not by Derek Powell.” Further, Wanek asserted
that Prudhome had not alleged sufficient facts to confer in loco parentis status.
On October 19, 2023, Wanek filed a second motion to dismiss Prudhome’s complaint,
again pursuant to § 6-1112(b)(6). Wanek also filed a statement of undisputed facts and an evidence
index.
Wanek’s statement of undisputed facts indicated that on February 23, 2023, Iowa social
services received an intake report that Powell was touching one of the minor children’s breasts and
vagina. Following an investigation, the social services made a determination that the allegation of
“Sexual abuse, Lascivious Acts with a child, was founded.” Subsequently, a criminal complaint
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was filed in the Iowa courts charging Powell with “Lascivious Acts with a child, a class C Felony.”
On September 7, the assistant county attorney filed a motion to dismiss the criminal complaint
against Powell and the case was dismissed the following day. While the criminal case had been
pending, there was a no contact order in place between Powell and the children.
At a hearing on October 30, 2023, the district court took up Wanek’s motions to dismiss
Prudhome’s complaint for leave to intervene. Wanek asked the court:
The first Motion to Dismiss was a straight Motion to Dismiss on the pleadings and no
evidence would be offered on. And then the second Motion to Dismiss is, you know, under
the same rules of pleading but done as a Motion for Summary Judgment because evidence
is to be offered. So I don’t know if you want to hear just the motion on the pleadings first
and not . . . have the evidence discussed outside of that or if you want to do the Motion . .
. to Dismiss that’s also a summary judgment. Do you want them together or separate?
The court instructed Wanek to “do them together” and to offer evidence on the motion to dismiss
“that’s also a Motion for Summary Judgment, please.”
Wanek offered four exhibits, including an affidavit of Wanek; an affidavit of Soledad
Peterson, Ojeda’s mother; a certified copy of Powell’s Iowa criminal case; and a certified copy of
the documents from Ojeda’s estate. These four exhibits were also listed in Wanek’s evidence index
with his second motion to dismiss.
The district court noted that “[e]ssentially, this is a hearing on a Motion for Summary
Judgment” but that the court would also review the pleadings on their face to address Wanek’s
first motion to dismiss. For purposes of the summary judgment motion, the court asked Prudhome
if she had any objection to Wanek’s four exhibits. Prudhome offered no objections, and the exhibits
were received by the court.
Prudhome also offered three exhibits; an affidavit of Prudhome; an affidavit of Desitiney
Nicol, Prudhome’s daughter; and Wanek’s Iowa child support payment history. Wanek objected
to the relevance of the child support payment history and Prudhome responded that the best
interests of the children “can be reflective by how the parent has shown support in the past. And
the arrearage that Mr. Wanek has accrued is significant.” Wanek also objected to the payment
history as he had not received a copy of the exhibit. The district court ruled that an adverse party
to a motion for summary judgment cannot serve opposing evidence on the day of the hearing and
sustained Wanek’s objection to the child support payment history but received Prudhome’s offered
affidavits.
Prudhome indicated that she did not have any objection to Wanek’s stated facts, except for
fact number 10 (that Powell was under a no contact order with the minor children until his criminal
case was dismissed). During argument Prudhome stated that after the case had been dismissed in
criminal court, a safety plan was developed through Iowa social services which advised the
parameters of contact between Powell and the children.
On November 17, 2023, the district court entered an order overruling Wanek’s motions to
dismiss and allowing Prudhome to intervene in the matter. The court found that Prudhome had
alleged sufficient facts in her complaint to merit her intervention, specifically that she had been
solely responsible for the children’s academic, emotional, physical, and psychological needs since
March 2023. Further, assuming the contents of Prudhome’s complaint are true, the court found
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that the complaint did not fail to state a claim for which relief can be granted. While recognizing
that under certain circumstances a motion to dismiss can be converted into a motion for summary
judgment, the court found that “this is not an appropriate case for summary judgment at this stage
of the proceedings.” Citing Johnson v. Woodhouse Ford Auto Family, 31 Neb. App. 587, 986
N.W.2d 765 (2023), the court reasoned that discovery had not been completed, the parties were
not given sufficient notice that this would be a summary judgment proceeding, and Prudhome was
not provided with a reasonable opportunity to present pertinent material for a motion for summary
judgment. Thus, the court overruled both of Wanek’s motions to dismiss based upon the parties’
pleadings only.
Wanek appeals.
ASSIGNMENTS OF ERROR
Restated, Wanek assigns that the district court erred in failing to grant Wanek’s motion to
dismiss under § 6-1112(b)(6) and allowing Prudhome to intervene.
STANDARD OF REVIEW
A jurisdictional question which does not involve a factual dispute is determined by an
appellate court as a matter of law. Dylan H. v. Brooke C., 317 Neb. 264, 9 N.W.3d 439 (2024).
ANALYSIS
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. Dylan H. v. Brooke C., supra.Here, Wanek asserts that the district court erred in failing to grant his motions to dismiss
and allowing Prudhome to intervene in the custody proceedings. The jurisdictional issue before us
is whether the order granting the motion to intervene is a final, appealable order. We conclude that
it is not.
In Carroll v. Gould, 308 Neb. 12, 952 N.W.2d 1 (2020), the Nebraska Supreme Court
reviewed a grandparent’s request to intervene in a custody proceeding. The court determined that
the trial court erred in denying the motion for leave to intervene, and it remanded the case with
directions for the court to allow the intervention and recognize the grandparent as a party to the
litigation. The court noted that whether as a matter of fact the grandparent stood in loco parentis
and whether, if so, that relationship should continue, can be determined later following an
appropriate hearing.
In contrast, the order appealed from in this case granted the intervention. In In re
Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019), the Nebraska Supreme Court
noted that it has consistently held that an order denying intervention is a final order for purposes
of appeal. However, because the intervention order in the case before it granted the petitions for
intervention, the order was not a final determination of the parties’ rights and was thus not a final
order. Relying upon Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S. Ct. 1177,
94 L. Ed. 2d 389 (1987), the Court explained that an order denying intervention is appealable
because the moving party has no right to appeal from any subsequent order or judgment entered
in the proceeding; whereas an order granting intervention allows a review on the merits of an
interveners motion on appeal from a final judgment.
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Wanek points to the case of In re Interest of Sarah H., 21 Neb. App. 441, 838 N.W.2d 389(2013) in support of his assertion that the order at issue is a final, appealable order. In that case,
the juvenile court entered a disposition order in which it allowed intervention by a man who was
the child’s legal father (having been married to the mother at the time the child was born) and who
was held out to be the child’s biological father for the first 15 years of her life. In addition, the
court continued placement of the child with this individual and set forth other dispositional
findings concerning therapy and services for the child. On appeal, this court found that the juvenile
court did not err in allowing the intervention or in its placement order.
The foregoing case is distinguishable from the present appeal in that the court in Sarah H.
entered a disposition order which included placement of the juvenile and was thus a final,
appealable order. See In re Interest of LeAntonaé D. et al., 28 Neb. App. 144, 942 N.W.2d 784(2020) (dispositional orders are final and appealable). Here, Prudhome has only been recognized
as a party to the proceedings; there has been no resolution of whether as a matter of fact Prudhome
stands in loco parentis and if so, whether that relationship should continue. These issues, along
with the prior grant of the motion to intervene, can be determined at a later stage of the proceeding
in the custody matter.
Wanek also argues that the order at issue should be considered a final, appealable order
under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2022), as it is an order entered in a special
proceeding that affects a substantial right. He asserts that the substantial right affected is protecting
the children from a “stranger in law” who may expose the children to the stepfather, an allegedly
dangerous person. Supplemental brief for appellant at 5. However, as noted above, the question of
whether Prudhome ultimately is allowed to have any rights with respect to the children will be
determined following a hearing in the custody proceeding, from which Wanek would be able to
appeal.
Because the order granting Prudhome’s motion to intervene is not a final, appealable order,
we do not have jurisdiction and the appeal is dismissed.
APPEAL DISMISSED.
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