934 N.W.2d 384
Neb. Ct. App.2019Background
- Kregg and Melissa Rickert divorced in 2016; they share one minor child and had a separation agreement giving Kregg sole physical custody and joint legal custody.
- Melissa filed to modify custody in 2017, seeking physical custody and removal of the child to California; amended complaint in June 2018 after relocations.
- Trial was scheduled for June 25, 2018. Melissa noticed Kregg’s deposition for June 21 and served a subpoena for documents. Kregg’s counsel objected and moved to quash; the court overruled those objections and confirmed the trial date.
- Kregg did not appear for the June 21 deposition; sanctions were entered against him. Late on June 22, 2018, Kregg filed an application for a stay under the Servicemembers Civil Relief Act (SCRA) with a self‑letter and a letter from a commanding officer.
- The district court denied the SCRA stay, finding the commanding officer’s letter did not state that Kregg’s military duty prevented his appearance or that leave was unauthorized, and further found the application untimely and made in bad faith. The court granted Melissa temporary legal and physical custody. Kregg appealed only the denial of the SCRA stay (and challenged custody, but that order was not final).
Issues
| Issue | Plaintiff's Argument (Kregg) | Defendant's Argument (Melissa) | Held |
|---|---|---|---|
| Whether Kregg’s SCRA application complied with §3932(b)(2) | Letters satisfied SCRA: Kregg’s letter stated unavailability and dates; CO letter confirmed deployment | CO letter lacked the two required statements: that duty prevents appearance and that leave is not authorized | Application failed statutory requirements because CO letter did not state duty prevented appearance nor that leave was unauthorized; stay denied |
| Whether court should nonetheless grant a discretionary stay despite defects | Even if form defective, court should grant stay to protect servicemember rights | Court can deny discretionary stay given bad faith, untimeliness, and extrinsic evidence of availability | Court did not abuse discretion in denying stay; application found untimely and interposed for delay/harassment |
| Whether the court improperly considered extrinsic evidence beyond the written stay application | Decision must rest only on the written SCRA submission | Court may consider other evidence; parties contested availability and credibility | Court permissibly considered extrinsic evidence (communications, testimony, conduct) in ruling |
| Whether denial of stay and temporary custody order violated due process | Procedural due process violation asserted as to custody hearing | Temporary custody order is interlocutory; due process challenge not properly before appellate court now | Court declined to reach custody/due process claims because temporary custody orders are not final and appealable |
Key Cases Cited
- Connolly v. Connolly, 299 Neb. 103 (statutory interpretation reviewed de novo)
- Carmicheal v. Rollins, 280 Neb. 59 (denial of SCRA stay is a final, appealable order)
- Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425 (trial court discretion to grant stays; factors to balance)
- Schrag v. Spear, 290 Neb. 98 (abuse of discretion standard)
- Engstrom v. First Nat. Bank of Eagle Lake, 47 F.3d 1459 (purpose of SCRA and equitable consideration)
- Hibbard v. Hibbard, 230 Neb. 364 (mere showing of military service insufficient for stay)
- In re Marriage of Herridge, 169 Wash. App. 290 (strict compliance with amended SCRA stay requirements)
- Fazio v. Fazio, 91 Mass. App. 82 (trial court within discretion to deny stay for incomplete SCRA application)