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Huskey v. Huskey

Supreme Court of Nebraska

November 7, 2014

CURTIS CHARLES HUSKEY, APPELLANT AND CROSS-APPELLEE,
v.
DEITRA MARIE HUSKEY, NOW KNOWN AS DEITRA MARIE OSTERFOSS, APPELLEE AND CROSS-APPELLANT

Page 378

[Copyrighted Material Omitted]

Page 379

Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge.

Vanessa J. Gorden and Abigail F. Littrell, of Gorden Law, L.L.C., and Megan McDowell, Senior Certified Law Student, for appellant.

Kelly T. Shattuck, of Vacanti Shattuck, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 380

[289 Neb. 440] Cassel, J.

INTRODUCTION

A recently enacted statute[1] affords procedural protections in cases involving child custody and parenting time to military [289 Neb. 441] parents affected by mobilization or deployment.[2] Pursuant to one provision,[3] the district court permitted the children of a military mother to temporarily accompany her for the duration of her assignment to Fort Benning, Georgia. The nonmilitary father appeals. The statutory language persuades us that the Legislature did not intend for truly temporary orders legitimately falling within the scope of this specific provision to be subject to appellate review. We therefore dismiss the appeal for lack of jurisdiction.

BACKGROUND

Divorce

In March 2011, a decree was entered dissolving the marriage of Deitra Marie Osterfoss, who was then known as Deitra Marie Huskey, and Curtis Charles Huskey. Osterfoss was awarded sole legal and physical custody of the parties' two children. Huskey was granted parenting time and ordered to pay child support in the amount of $600 per month.

Osterfoss joined the U.S. Army Reserve shortly after the parties' divorce. On March 26, 2013, the Department of the Army sent Osterfoss orders requiring her to report to Fort Benning on August 17 for active duty for a period of 1 year, ending August 16, 2014.

Pleadings for Modification

On July 2, 2013, Osterfoss filed a " Complaint for Modification," alleging that her assignment to Fort Benning constituted a material change in circumstances. She requested that the district court modify the parties' divorce decree and parenting plan for the 2013-14 school year and enter an

Page 381

order permitting her to temporarily relocate the parties' children to Georgia. In support of her request, she asserted that it would not be in the children's best interests to remain in Nebraska with Huskey, because he was in " an unstable relationship with his girlfriend and must move."

[289 Neb. 442] In response to Osterfoss' complaint, Huskey filed an " Answer and Counter Complaint to Modify," in which he protested relocation of the children for any length of time that would impact his parenting time or the children's education. He further contended that remaining in Nebraska was in the children's best interests, because he would be able to exercise parenting time, the children would be able to continue their education in the Gretna Public Schools system, the children would have the support of extended family members, and relocation of the children would result in their removal from Nebraska for a minimum of 1 year. He therefore requested that the district court award him temporary primary custody during Osterfoss' assignment to Georgia, permanently modify custody to joint legal and physical custody, and order child support.

Motions for Temporary or Expedited Relief

Osterfoss moved the district court for temporary orders and/or an expedited trial. In her motion, she clarified that she was not seeking to permanently relocate the children to Georgia, but sought only a temporary order. The court overruled Osterfoss' motion and granted Huskey temporary custody. The court further suspended Huskey's child support obligation while the children were in his possession and ordered Osterfoss to pay child support.

Trial

Trial began on December 5, 2013. The district court first conducted an in camera interview of the parties' children. The parties' 12-year-old daughter testified that she wanted to go to Georgia with Osterfoss. The parties' 6-year-old son similarly testified that he desired to be with Osterfoss.

Huskey testified that he was currently living with his girlfriend and their 13-month-old daughter in Waverly, Nebraska. The parties' children had been living with him since the middle of August 2013 pursuant to the grant of temporary custody. Huskey described that he and the children had become " a lot closer." And his employment as a sergeant for the [289 Neb. 443] Lancaster County Department of Corrections permitted him to pick up the children from school every day. However, Huskey explained that because he and his girlfriend were both required to work nights, his mother usually stayed overnight with the children two or three times a week and would take the children to school the following morning.

As to Osterfoss' allegation that Huskey and his girlfriend had an unstable relationship, Huskey testified that his relationship with his girlfriend was secure. He further explained that any discussion of a future move was for the purpose of being closer to Gretna, Nebraska, in order to minimize travel time to the children's school.

Huskey agreed that he and Osterfoss had generally " gotten along" and been able to cooperate with respect to the children's best interests. As to her parenting of the children, Huskey stated that he had " some issues," but that " for the most part, [Osterfoss] did a good job" and that he considered her to be a good parent. He further confirmed that both he and Osterfoss possessed good ...


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