Huskey v. Huskey
289 Neb. 439
| Neb. | 2014Background
- Divorce decree (Mar 2011) awarded sole legal and physical custody to Deitra Osterfoss (then Huskey); Curtis Huskey had parenting time and child support obligations.
- Osterfoss, a reservist, received orders for active duty at Fort Benning from Aug 17, 2013 to Aug 16, 2014 and filed to temporarily relocate the children for the assignment year under Neb. Rev. Stat. § 43-2929.01.
- Huskey counterclaimed, seeking temporary primary custody during her deployment and permanent modification of custody and child support; trial occurred in Dec 2013 after the court previously granted Huskey temporary custody and suspended his support obligation.
- After in-camera interviews and testimony, the district court construed Osterfoss’s filing as a § 43-2929.01 temporary removal request and permitted the children to accompany her to Georgia until Aug 16, 2014, finding Huskey failed to prove by clear and convincing evidence a best-interest-based custody change.
- Huskey appealed to the Nebraska Supreme Court (after bypassing the Court of Appeals); Osterfoss moved to dismiss for lack of appellate jurisdiction; the Supreme Court ordered supplemental briefing on jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Dec 17, 2013 order is a final, appealable order under § 25-1902 | Huskey: order affects substantial rights (custody/parenting time) and is appealable | Osterfoss: order is truly temporary under § 43-2929.01(4)(a) and not a final order | Court: order is temporary under § 43-2929.01(4)(a), does not affect a substantial right, and is not final; no appellate jurisdiction — appeal dismissed |
| Burden and standard under § 43-2929.01(4)(a) (interpretation) | Huskey: statute improperly shifts burden/violates equal protection and prevented appropriate review | Osterfoss: district court properly applied § 43-2929.01 requiring clear and convincing evidence to change custody during deployment period | Court: did not reach merits due to lack of jurisdiction; statutory interpretation is a question of law but unnecessary to decide here |
| Whether constitutional challenge can be raised on appeal | Huskey: statute violates equal protection (Neb. Const. art. I, § 3) | Osterfoss: constitutional challenge not properly before appellate court | Court: lacks jurisdiction; additionally, Huskey failed to raise constitutional claim below so it would not be considered on appeal even if jurisdiction existed |
| Whether district court should have adjudicated Huskey’s pending counterclaim for permanent modification | Huskey: counterclaim remains pending and may be affected | Osterfoss: court may have been constrained by § 43-2929.01 from permanent modification | Court: noted the court should have addressed the counterclaim or made clear it was reserved; failure to decide other pending issues renders order interlocutory as to those matters |
Key Cases Cited
- Carmicheal v. Rollins, 280 Neb. 59 (reiterating that temporary custody grants during deployment are not final orders) (2010)
- Steven S. v. Mary S., 277 Neb. 124 (temporary custody orders that briefly disturb parent-child relationship do not affect substantial rights) (2009)
- Waite v. City of Omaha, 263 Neb. 589 (appellate jurisdiction principles) (2002)
- Dorshorst v. Dorshorst, 174 Neb. 886 (temporary orders and final-order analysis) (1963)
- Lindner v. Kindig, 285 Neb. 386 (constitutional issues not raised below are generally not considered on appeal) (2013)