Rickert v. Rickert

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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RICKERT v. RICKERT
Cite as 27 Neb. Ct. App. 533
K regg Scott R ickert, appellant, v. Melissa
R ing R ickert, now known as Melissa
R ing Walker, appellee.
___ N.W.2d ___
Filed August 27, 2019. No. A-18-628.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law that an appellate court resolves independently of the
trial court.
2. Trial: Appeal and Error. The decision of whether to grant a motion to
stay a trial is vested in the discretion of the trial court, and its decision
will not be overturned on appeal absent an abuse of that discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Armed Forces: Federal Acts: Final Orders: Appeal and Error. The
denial of a stay under the Servicemembers Civil Relief Act is a final,
appealable order.
5. Armed Forces: Federal Acts: Intent. The purpose of the
Servicemembers Civil Relief Act is to suspend enforcement of civil
liabilities of persons in the military service of the United States in order
to enable such persons to devote their entire energy to the defense needs
of the nation.
6. Armed Forces: Federal Acts. The Servicemembers Civil Relief Act is
not to be used as a sword against persons with legitimate claims, and a
court must give equitable consideration of the rights of parties to the end
that their respective interests may be properly conserved.
7. Armed Forces: Federal Acts: Judgments: Appeal and Error. An
appellate court reviews whether an application for stay met the statutory
requirements of the Servicemembers Civil Relief Act independent of the
district court’s findings.
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8. Courts: Actions. Courts inherently possess the power to stay civil pro-
ceedings when required by the interests of justice.
9. Actions: Proof. The burden of establishing that a proceeding should be
stayed rests on the party seeking the stay.
10. Trial. In deciding whether to stay a trial, the trial court should balance
the competing needs of the parties, taking into account, among other
things, the interest of the courts, the probability that proceeding will
work a constitutional violation on the movant, the presence or absence
of hardship or inequity, and the burden of proof.
11. Armed Forces: Federal Acts: Appeal and Error. It is within the dis-
cretion of the trial court to grant a stay if the movant does not comply
with the requirements of the Servicemembers Civil Relief Act.
12. Child Custody: Final Orders: Appeal and Error. A temporary order
of custody is not a final, appealable order.
13. Armed Forces: Federal Acts: Child Custody. The grant of temporary
custody must be considered separately from a denial of stay under the
Servicemembers Civil Relief Act.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.
R iedmann, A rterburn, and Welch, Judges.
R iedmann, Judge.
I. INTRODUCTION
Kregg Scott Rickert appeals the temporary grant of legal
and physical custody of his minor child to the child’s mother,
Melissa Ring Rickert, now known as Melissa Ring Walker.
Kregg alleges that the Lancaster County District Court
erred when it overruled his application for stay under the
Servicemembers Civil Relief Act (SCRA), 50 U.S.C. § 3901 et
seq. (Supp. V 2017). We affirm the order of the district court.
II. BACKGROUND
Kregg and Melissa were married in Lincoln in 2010. The
couple had one child during their marriage, a son born in 2013.
Both Kregg and Melissa were members of the Armed Forces
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of the United States, and both were stationed in Okinawa,
Japan, in 2014. In 2015, the parties agreed to a separation
agreement, whereby Kregg received sole physical custody of
the child and the parents had joint legal custody. The Lancaster
County District Court entered a decree of dissolution in March
2016, encapsulating the separation agreement.
In 2017, Melissa filed a complaint to modify the decree in
which she sought physical custody of the child because Kregg
was being relocated to Virginia and she was being relocated
to California. She amended her complaint in June 2018, stat-
ing that both parties had been relocated as anticipated and
seeking physical custody and removal of the minor child
to California. Two days later, Melissa filed a notice to take
deposition and request for production of documents, seek-
ing to depose Kregg on June 21. She also served a subpoena
duces tecum upon Kregg to obtain certain documents to be
delivered on June 25.
Kregg obtained new counsel in early June 2018 who filed
several motions in response to Melissa’s requests, including
a motion to dismiss Melissa’s complaint, a motion to quash
subpoena duces tecum, and an objection to Melissa’s notice to
take deposition. A hearing was held on June 19.
At the hearing, Kregg’s counsel argued that Kregg should
not have to appear for a deposition on June 21, 2018. Kregg’s
counsel stated:
[Kregg] is an active duty service member. There are pro-
visions of federal law that allow a party who is a service
member to apply for a stay, up to 90 days, is the law.
We’re not doing that here today, we’re just asking the
Court to sustain the motion for protective order and not
require [Kregg] to appear on June 21st . . . .
Later in the hearing, the following exchange occurred:
THE COURT: But you understand we do have trial on
[June] 25th.
[Kregg’s counsel]: No, I don’t understand that.
....
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[Kregg’s counsel]: There’s no order for trial. There’s
a — written, signed, filed, endorsed by the clerk with a
date stamp saying that there’s going to be a trial on June
25th, I checked the public court file, there’s nothing that
says that. . . .
THE COURT: All right. Well, you weren’t party to the
last conference that we had; [Melissa’s counsel] was, and
I think we all decided that . . . we would still go forward
with the trial on the 25th.
After the exchange with the court, Kregg’s counsel contin-
ued to argue that there was not an order stating trial would be
held on June 25, 2018. The court overruled Kregg’s objection
to the notice to take deposition, as well as his motion to quash
the subpoena duces tecum, and stated, “We will go forward
with the trial on June 25th and 26th.”
Kregg did not appear for his deposition, and a hearing was
held on June 22, 2018, on Melissa’s motion for discovery
sanctions. Neither Kregg nor his counsel attended the hearing.
At the hearing, Melissa’s attorney requested that as a sanction
the court approve a list of questions prepared by her that it
would deem admitted. In support of her motion, she offered
emails she received from Kregg’s attorney, advising her that
Kregg would not be appearing for the scheduled deposition on
June 21 but that Kregg’s deposition could be taken on Sunday,
June 24. Melissa’s attorney rejected that offer because alter-
nate arrangements had been made with the court reporter for
a deposition on Saturday, June 23. In response, Kregg’s attor-
ney offered to make him available for a telephonic deposition
on Saturday, June 23.
The court noted that Kregg failed to comply with Melissa’s
notice of deposition and the court’s order overruling his objec-
tion to that notice. Consequently, it granted Melissa’s requested
sanctions and entered an order accordingly that day.
At 10:14 p.m. on June 22, 2018, Kregg filed an application
for stay under § 3932 of the SCRA. As a part of his appli-
cation for stay, Kregg filed a letter from the “Commanding
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Officer, USS Arlington (LPD 24),” which stated in rel-
evant part:
1. The USS ARLINGTON (LPD 24) shall be underway
the whole month of June 2018. Chief Warrant Officer 2
Kregg Rickert is a member of this command and shall
embark with this unit. This letter constitutes a military
order to deploy pursuant to 50 U.S.C. Appx 535(i)(1), the
Servicemembers Civil Relief Act (SCRA).
2. The SCRA provides our servicemembers the ability
to focus on the command’s mission by addressing civil
matters that could present financial and legal challenges
to individual readiness. Your sacrifice in releasing the
servicemember from this contractual obligation is greatly
appreciated and is balanced by the servicemembers sacri-
fice in serving our country.
Kregg also attached a letter which stated:
I am currently in military service with the United
States Armed Forces. Specifically, I am a Chief Warrant
Officer 2 of the United States Marine Corps (“USMC”).
The USMC is a component of the U.S. Department of
Navy. Currently I am embedded in the USS Arlington
(LPD-24), a Navy amphibious warfare ship. The USS
Arlington’s homeport is Naval Station Norfolk in
Norfolk, Virginia. The USS Arlington is underway dur-
ing the entire month of June 2018. This materially affects
my ability to appear in the subject proceeding during the
month of June 2018. I could appear between July 10,
2018, and July 31, 2018.
Melissa filed an objection to Kregg’s application for stay and
a motion for temporary custody of the minor child.
The court addressed Kregg’s application for stay and
Melissa’s motion for temporary custody on June 25, 2018,
the date that had been set for trial. In response to the court’s
question as to why he waited until the eve of trial to inform
the court that Kregg was unavailable for the month of June,
Kregg’s counsel stated, “Because I don’t think [Kregg] knew
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there was a trial . . . and I didn’t know there was a trial.”
Kregg’s counsel further stated that Kregg’s former attorney did
not notify him of a trial date.
Melissa’s counsel argued that Kregg’s application for stay
did not comply with the SCRA statutory requirements, because
the letter from his alleged commanding officer did not state
that Kregg’s current military duty prevented his appearance
and that military leave was not authorized for Kregg. She fur-
ther argued that Kregg’s counsel had informed her that Kregg
was available for a deposition the day before trial.
Kregg’s counsel responded that when he emailed Melissa’s
counsel about Kregg’s availability for a deposition, he did so
without confirming Kregg’s availability and was not aware
that Kregg was unavailable due to his military service. The
court took testimony from Melissa regarding her objection
to the application for stay and her motion for temporary cus-
tody of the minor child. Melissa testified that Kregg had a
“FaceTime” parenting call with the minor child on June 21,
2018, and appeared to be at his girlfriend’s house because the
minor child was heard talking to the girlfriend’s dog. Melissa
also testified that Kregg indicated to her that he would not be
deployed until the fall of 2018.
The court denied the application for stay and granted Melissa
temporary legal and physical custody of the minor child. In a
subsequent written order denying Kregg’s application for stay,
the court found that the application was untimely and inter-
posed in bad faith for purposes of delay and harassment. The
order stated that the evidence indicated that Kregg was not on
board the USS Arlington because Kregg’s attorney offered a
date of June 24, 2018, for a deposition, it was apparent that
Kregg was not on the ship during his “FaceTime” call with the
minor child a few days earlier, and Kregg informed Melissa
that he would next be deployed in the fall. Furthermore, the
court’s order stated that trial was scheduled by counsel in
the court’s chambers on May 18, to accommodate both par-
ties, because they were “stationed on opposite coasts of the
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country.” Finally, the court determined that Kregg’s applica-
tion for stay did not comply with the requirements of the
SCRA, namely because the letter from his commanding offi-
cer did not state that his current military duty prevented his
appearance and that military leave was not authorized. Kregg
timely appealed the court’s denial of his application for stay
and its order awarding temporary custody of the minor child
to Melissa.
III. ASSIGNMENTS OF ERROR
Kregg assigns, restated, that the district court erred in (1)
finding that his application for stay did not satisfy the statutory
requirements under the SCRA, (2) denying his application for
stay even if it did not satisfy the statutory requirements, (3)
considering information extrinsic to his application for stay,
and (4) denying him procedural due process.
IV. STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law that
an appellate court resolves independently of the trial court.
Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).
[2,3] The decision of whether to grant a motion to stay a
trial is vested in the discretion of the trial court, and its deci-
sion will not be overturned on appeal absent an abuse of that
discretion. See Schuessler v. Benchmark Mktg. & Consulting,
243 Neb. 425, 500 N.W.2d 529 (1993). An abuse of discretion
occurs when a trial court bases its decision upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. Schrag v. Spear,
290 Neb. 98, 858 N.W.2d 865 (2015).
V. ANALYSIS
1. District Court Did Not Err in Denying
K regg’s A pplication for Stay
Kregg argues that the district court erred in overruling his
application for stay under the SCRA after determining that it
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did not meet the statutory requirements. Kregg further alleges
that the district court erred in refusing to grant his application
for stay even if it did not meet the statutory requirements.
After reviewing the record, we find that the district court did
not err in refusing to stay the proceedings.
[4] We note at the outset that although the court denied the
application for stay, it did not take testimony on Melissa’s
modification petition, nor did it rule on it; rather, it addressed
only her motion for temporary orders. In essence, Kregg
received the continuance he was requesting. However, the
denial of a stay under the SCRA is a final, appealable order.
Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010).
Carmicheal presented a similar situation in which the applica-
tion for stay was denied and the court entered a temporary
order regarding custody. Because the Nebraska Supreme Court
proceeded to address the decision denying the application for
stay, we follow the same course.
(a) Kregg’s Application for Stay Did Not
Satisfy SCRA Requirements
Kregg asserts that his application for stay complied with
the requirements of the SCRA and that thus, the district court
erred in overruling it. We disagree.
[5,6] The purpose of the SCRA is to suspend enforcement
of civil liabilities of persons in the military service of the
United States in order to enable such persons to devote their
entire energy to the defense needs of the nation. Engstrom v.
First Nat. Bank of Eagle Lake, 47 F.3d 1459 (5th Cir. 1995).
Nevertheless, the SCRA “is not to be used as a sword against
persons with legitimate claims,” and a court must give equi-
table consideration of the rights of parties to the end that
their respective interests may be properly conserved. See id.
at 1462.
Section 3932(a) states that “[t]his section applies to any
civil action or proceeding, including any child custody pro-
ceeding, in which the plaintiff or defendant at the time of
filing an application under this section . . . (1) is in military
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service or is within 90 days after termination of or release
from military service . . . .” Section 3932(b) provides that a
servicemember can request a stay under § 3932 at any stage
before final judgment in a civil proceeding to which the serv­
icemember is a party. See Carmicheal v. Rollins, supra. Upon
application by the servicemember for a stay, the court “‘shall
. . . stay the action for a period of not less than 90 days, if the
conditions in paragraph (2) are met.’” Id. at 63, 783 N.W.2d
at 766-67.
In order to qualify for a stay of the proceedings, the service-
member shall include a “letter or other communication setting
forth facts stating the manner in which current military duty
requirements materially affect the servicemember’s ability to
appear and stating a date when the servicemember will be
available to appear.” § 3932(b)(2)(A). The servicemember is
also required to include a “letter or other communication from
the servicemember’s commanding officer stating that the serv­
icemember’s current military duty prevents appearance and
that military leave is not authorized for the servicemember at
the time of the letter.” § 3932(b)(2)(B).
[7] Here, we review whether Kregg’s application for stay
met the statutory requirements of the SCRA independent of the
district court’s findings. See Connolly v. Connolly, 299 Neb.
103, 907 N.W.2d 693 (2018). First, it is undisputed that Kregg
is a member of the U.S. Marine Corps and that thus, he is eli-
gible for a stay under § 3932(a). Next, Kregg complied with
§ 3932(b)(2)(A) by including a letter from himself indicating
that he was on board the USS Arlington, which was underway
the entire month of June 2018. Kregg also stated in his letter
that he would be available to appear between July 10 and 31,
2018, thus satisfying the SCRA requirement that he state a date
when he will be available to appear.
Despite satisfying § 3932(b)(2)(A), Kregg failed to com-
ply with § 3932(b)(2)(B), because the letter from his com-
manding officer did not state that his current military duty
prevented him from appearing and did not state that military
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leave was not authorized. The letter from Kregg’s command-
ing officer states that the USS Arlington “shall be underway
the whole month of June 2018” and that Kregg “shall embark
with this unit.” However, the letter does not specifically state
that Kregg’s military duty would prevent him from attending
the hearing, nor does the letter specify that Kregg is unable
to obtain military leave to attend the hearing. Additionally,
the letter requests that Kregg be released from his “contrac-
tual obligation,” not from attendance at a legal proceeding.
Therefore, Kregg’s application for stay did not comply with
the statutory requirements of the SCRA.
While we find no Nebraska cases interpreting these require-
ments of the SCRA, the Supreme Court held in Hibbard v.
Hibbard, 230 Neb. 364, 367, 431 N.W.2d 637, 640 (1988),
that a “mere showing” that the defendant was in the military
service was insufficient to obtain a stay under the SCRA’s
predecessor act. Other states have similarly held that an appli-
cation for stay under the SCRA must strictly comply with the
statutory requirements of the act. See, Fazio v. Fazio, 91 Mass.
App. 82, 71 N.E.3d 157 (2017); In re Marriage of Herridge,
169 Wash. App. 290, 279 P.3d 956 (2012).
In In re Marriage of Herridge, supra, the servicemember
failed to state a date upon which he would be available to
appear and the letter from his commanding officer did not state
whether military leave was available to the servicemember.
The Washington appellate court determined that these deficien-
cies did not entitle him to the mandatory stay. It specifically
relied upon amendments to the SCRA that now mandate the
specific information in support of the request as contained in
§ 3932(b)(2) above. The court stated that disregarding these
requirements “does not honor the plain words of the statute
or recognize Congress’s purposes in amending the SCRA.
Where Congress has expressly stated that specific information
must be included in an application for a mandatory stay, it
must be assumed that it meant what it said.” In re Marriage of
Herridge, 169 Wash. App. at 300-01, 279 P.3d at 961.
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Likewise, Nebraska appellate courts have required strict
compliance with statutory notification schemes. See Rice v.
Bixler, 289 Neb. 194, 854 N.W.2d 565 (2014) (burdens of
dormant mineral statutes were not onerous, thus they should
be strictly complied with). See, also, Kellie v. Lutheran Family
& Social Service, 208 Neb. 767, 305 N.W.2d 874 (1981)
(strict compliance with adoption statutes is required); Linch v.
Northport Irr. Dist., 14 Neb. Ct. App. 842, 717 N.W.2d 522 (2006)
(strict compliance with statutory requirements for revival
of claim).
Thus, we conclude that because Kregg failed to strictly com-
ply with the requirements of the SCRA, the district court did
not err in denying his application for stay.
(b) District Court Did Not Abuse Its Discretion
in Refusing to Grant Kregg’s
Application for Stay
Kregg also asserts that the district court abused its discretion
in failing to grant a stay of the proceedings, even though it
found his application for stay under the SCRA to be defective.
We disagree.
[8-10] Courts inherently possess the power to stay civil pro-
ceedings when required by the interests of justice. Schuessler
v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 N.W.2d
529 (1993). The burden of establishing that a proceeding
should be stayed rests on the party seeking the stay. Id. In
deciding whether to stay a trial, the trial court should balance
the competing needs of the parties, taking into account, among
other things, the interest of the courts, the probability that pro-
ceeding will work a constitutional violation on the movant, the
presence or absence of hardship or inequity, and the burden of
proof. Id.
[11] Further, other jurisdictions have held that it is within
the discretion of the trial court to grant a stay if the movant
does not comply with the requirements of the SCRA. See, In
re Marriage of Bradley, 282 Kan. 1, 137 P.3d 1030 (2006)
(where there is failure to satisfy conditions of SCRA, then
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granting of stay is within discretion of trial court); Fazio v.
Fazio, 91 Mass. App. 82, 71 N.E.3d 157 (2017) (trial judge
did not abuse discretion in denying stay following incomplete
request for stay under SCRA).
The district court did not abuse its discretion in refusing
to grant Kregg’s application for stay. In its order overruling
Kregg’s application for stay, the court found that the applica-
tion was untimely, interposed in bad faith, and for purposes of
delay and harassment. The court determined that the evidence
indicated that Kregg was not unavailable due to his military
service, primarily because Kregg’s attorney offered the day
before trial as a date to take Kregg’s deposition. Melissa testi-
fied that Kregg had a “FaceTime” call with the minor child
on June 21, 2018, from his girlfriend’s house, and Kregg
informed Melissa that he would not be deployed until the fall
of 2018. The record supports the court’s decision, and we find
no abuse of discretion in its decision to deny the stay.
Kregg also makes a plethora of arguments asserting that the
district court did not properly set a trial date and that conse-
quently, he did not learn of the trial date until June 19, 2018.
Kregg further alleges that, because he did not know of the trial,
he did not inform the district court he was unavailable for the
month of June. However, the district court indicated that at a
May 18 conference in the judge’s chambers, trial was set for
June 25. The court indicated that trial was set for that date to
accommodate both parents, as they were “stationed on oppo-
site coasts of the country.” While we do not have a record of
the May 18 conference, Melissa’s counsel represented to the
court that Kregg’s former counsel confirmed Kregg’s availabil-
ity for the trial date prior to setting it. Thus, we reject Kregg’s
argument that the district court failed to properly set a date
for trial.
Even if we were to find that the district court erred in
failing to grant Kregg’s application for stay, Kregg was not
prejudiced by the court’s error, as we alluded to above. A stay
under § 3932(b)(1) of the SCRA must be for at least 90 days.
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Kregg requested a stay of the proceedings regarding Melissa’s
petition to modify the separation agreement between the par-
ties. The court’s order explicitly states that “the trial was not
held today.” However, the court did hear evidence regarding
Melissa’s motion for a temporary order of child custody. As
of the time Kregg filed this appeal, a trial on Melissa’s peti-
tion for modification of the separation agreement had not
been held. Thus, Kregg has received a stay of proceedings far
longer than the 90 days mandated by the SCRA; therefore,
he was not prejudiced by the court’s denial of his application
for stay.
(c) Court Did Not Improperly Consider
Evidence Extrinsic to Kregg’s
Application for Stay
Kregg further asserts that the district court erred in consider-
ing evidence extrinsic to his application for stay. We disagree.
Nowhere in the SCRA is it indicated that a court cannot con-
sider evidence beyond a party’s application for stay. Likewise,
Kregg does not point us to any authority holding that courts
cannot consider extrinsic evidence on an application for stay.
In Hibbard v. Hibbard, 230 Neb. 364, 367, 431 N.W.2d 637,
640 (1988), the Supreme Court stated, “The record before this
court does not reflect that [the applicant] presented any com-
petent factual evidence, by way of affidavit or otherwise, in
support of the stay.” Thus, it appears that the trial court was
authorized to receive and consider evidence beyond the appli-
cation for stay filed by the applicant.
To the extent that Kregg argues that his application for stay
complied with the statutory guidelines of the SCRA, the dis-
trict court considered only his application and the supporting
letters in determining that the application did not comply with
the SCRA. Additionally, the court did not abuse its discretion
in considering extrinsic information, such as communication
between counsel for both parties and Melissa’s testimony,
in determining that Kregg’s application for stay should not
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be granted. Kregg moved the court to stay the proceedings,
Melissa objected to his application, and the court heard evi-
dence on the issue to make an informed ruling. We reject
Kregg’s argument that the district court erred in considering
evidence that was extrinsic to his application for stay.
2. Kregg’s Remaining Assigned Error
[12,13] Kregg’s remaining assigned error, that the district
court deprived him of procedural due process, relates primarily
to the district court’s temporary order granting Melissa legal
and physical custody of the minor child. However, a temporary
order of custody is not a final, appealable order. Carmicheal
v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010). Additionally,
the grant of temporary custody must be considered separately
from a denial of stay under the SCRA. See id. Generally, only
final orders are appealable. Carney v. Miller, 287 Neb. 400,
842 N.W.2d 782 (2014). Accordingly, we decline to address
Kregg’s remaining assigned error.
VI. CONCLUSION
We find no error in the district court’s denial of Kregg’s
application for stay. Because a temporary order of custody is
not a final, appealable order, we do not reach Kregg’s other
assigned error, and we affirm the decision of the district court.
A ffirmed.