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Rickert v. Rickert

Court of Appeals of Nebraska

August 27, 2019

Kregg Scott Rickert, appellant,
v.
Melissa Ring Rickert, now known as Melissa Ring Walker, appellee.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question 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 unreasonable 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.

         [27 Neb.App. 534] 8. Courts: Actions. Courts inherently possess the power to stay civil proceedings 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 discretion 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.

          Matt Catlett, of Law Office of Matt Catlett, for appellant.

          Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.

          Riedmann, Arterburn, and Welch, Judges.

          RIEMANN, 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 [27 Neb.App. 535] 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, stating 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, seeking ...


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