Rickert v. Rickert, A-18-628.

Decision Date27 August 2019
Docket NumberNo. A-18-628.,A-18-628.
Citation934 N.W.2d 384,27 Neb.App. 533
Parties Kregg Scott RICKERT, appellant, v. Melissa Ring RICKERT, now known as Melissa Ring Walker, appellee.
CourtNebraska Court of Appeals

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

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

Riedmann, Arterburn, and Welch, Judges.

Riedmann, 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 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 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 provisions 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.
.... [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 continued 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 alternate arrangements had been made with the court reporter for a deposition on Saturday, June 23. In response, Kregg’s attorney 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 objection 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 application for stay, Kregg filed a letter from the "Commanding Officer, USS Arlington (LPD 24)," which stated in relevant 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 sacrifice 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 during 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 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 further 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 custody 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 interposed 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 parties, because they were "stationed on opposite coasts of the country." Finally, the court determined that Kregg’s application for stay did not comply with the requirements of the SCRA, namely because the letter from his commanding officer 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

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).

The decision of whether to grant a motion to stay a trial is vested in the discretion of the trial court, and its...

To continue reading

Request your trial
2 cases
  • Nelssen v. Ritchie, S-18-1020
    • United States
    • Supreme Court of Nebraska
    • October 25, 2019
    ...facts, essential elements of a claim of equitable estoppel. For similar reasons, we find no basis to conclude that Ritchie could have 934 N.W.2d 384 waived the right to contend that the time to revive the judgment had expired. Waiver is a voluntary and intentional relinquishment of a known ......
  • Hawkins v. Delgado
    • United States
    • Supreme Court of Nebraska
    • January 29, 2021
    ...thus, her ability to appear was not materially affected by her military service.More recently, the Nebraska Court of Appeals decided Rickert v. Rickert .15 That court found the requirements of the SCRA were not met where the letter from the applicant's commanding officer did not state that ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT