Huddleston v. Huddleston

ANNE MARIE HUDDLESTON, NOW KNOWN AS ANNE MARIE CUDABACK, APPELLANT, v. ROBERT MICHAEL HUDDLESTON, APPELLEE.

No. A-19-874.

NEBRASKA COURT OF APPEALS

April 28, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Buffalo County: JOHN H. MARSH, Judge. Affirmed.

Lindsay Belmont, of Koenig Dunne, P.C., L.L.O., for appellant.

Bradley D. Holbrook and Elizabeth J. Klingelhoefer, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Anne Marie Huddleston, now known as Anne Marie Cudaback, appeals the order of the Buffalo County District Court modifying the awards of custody, visitation, and child support. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

1. PREVIOUS PROCEEDINGS

In December 2014, the district court entered a dissolution decree, as modified by a subsequent journal entry, dissolving Anne and Robert Michael Huddleston's marriage, awarded the parties joint legal custody of their two minor children Noah and Erin, and provided that Anne was to be the sole determiner of any appropriate medical care necessary for Erin. Primary physical custody of Noah was awarded to Robert and primary physical custody of Erin, who has cystic fibrosis, was awarded to Anne. Noah has since reached the age of majority leaving Erin as the parties' only minor child. At the time of the dissolution, both parties resided in Kearney, Nebraska.

In February 2015, Anne advised Robert of her intention to move with Erin from Kearney to Omaha, Nebraska. Despite Robert's objections, Anne and Erin moved to Omaha at the end of the 2014-15 school year. Robert filed a complaint to modify the parties' dissolution decree seeking primary physical custody of Erin or, in the alternative, a modification of the parties' parenting schedule. Robert argued that moving Erin to Omaha was subject to his consent as joint legal custodian, that the move constituted a material change in circumstances, and that the move was not in Erin's best interests which he believed was Erin residing with him. In November, the court denied Robert's complaint for modification of custody finding that

the parent with sole physical custody of a child has the authority to move the child within the State of Nebraska without the consent of the other parent or consent of the court. The courts have also found that the change in the residential location is not in [and] of itself a material change in circumstances requiring relitigation of custody. Rather, it appears that a substantial relocation away from one parent justifies reconsideration and perhaps modification of the parenting time award. See[,] for example[,] [Bohnet v. Bohnet], 22 Neb. App. 846 (2015)[,] in which the Nebraska Court of Appeals found that the custodial parent moving 148 miles away from the other parent did not constitute a material change of circumstances to modify custody, but only visitation and parenting time.

The court also modified the parties' parenting time schedule awarding Robert with parenting time every other weekend, alternating holidays, and the first half of the summer.

2. CURRENT PROCEEDINGS

In March 2018, Robert filed another complaint for modification alleging a material change in circumstances including that Erin, being of sufficient age and maturity, had expressed a preference to reside with Robert, Erin's counselor was supportive of Erin's stated preference, and that modification was in Erin's best interests.

On May 11, 2018, Anne filed a motion for change of venue seeking to move the docket to the Douglas County District Court. In support of this motion, Anne alleged that she and Erin moved from Kearney to Omaha at the end of the 2014-15 school year and have resided in Omaha for nearly 3 years; that in November 2017, the court entered a journal entry modifying the parties' 2014 dissolution decree "regarding parenting matters including but not limited to [Robert]'s routine and holiday parenting time, provisions for parental contact with the minor child, transportation, name on child's official records, emergency medical decisions, scheduling of activities, the minor child residing in Nebraska, and mediation for conflicts prior to seeking judicial intervention"; the minor child attends school in Omaha, receives medical treatment in Omaha, and her medical providers are located in Omaha; and Robert is seeking a review of custody of the minor child which would require testimony from the minor child's medical care team in Omaha. She alleged that the Douglas County District Court was the more convenient venue for this matter. On May 22, a hearing was held on the motion to change venue and the court received an affidavitby Anne into evidence; however, this hearing and exhibit are not included in our record. On May 24, the district court overruled Anne's motion to change venue.

Following a trial progression conference held in mid-May 2018, on May 17, the district court ordered that discovery was to be completed, and the parties were to exchange witness and exhibit lists, 30 days prior to trial which was scheduled for August 7.

On July 2, 2018, Anne's first counsel filed a motion to withdraw for the reason that Anne had obtained different counsel. The following day, July 3, the district court granted Anne's first counsel's leave to withdraw and Anne's new counsel filed an entry of appearance. Also on July 3, Anne's new counsel filed a motion to continue the trial set for August 7 because counsel would "be outside of the State of Nebraska from August 1, 2018[,] through August 10, 2018, and is not available for trial on August 7, 2018." The motion to continue the trial also alleged that new counsel required time to complete discovery and that counsel would be available for trial by October 1 which trial date was available. Finally, new counsel requested leave of the court to file a responsive pleading out of time. Counsel also filed an affidavit in support of the motion to continue. The hearing on the motion to continue and request to file a responsive pleading out of time was heard telephonically by the district court on July 17. Also on July 17, Robert's counsel traveled from Kearney to Omaha for the noticed deposition of Stephanie Huckins, Erin's counselor. Moments before the deposition was noticed to occur, Anne's counsel advised Robert's counsel that she was not attending the deposition and would be withdrawing as Anne's counsel of record. Neither Anne nor her counsel attended Huckins' deposition.

On July 26, 2018, the district court granted Anne's motion to file her responsive pleading out of time, but denied her motion to continue the trial noting that Anne's prior counsel

acknowledged to the Court at the time of the progression conference on May 14, 2018, that trial in the matter should be concluded prior to school resuming for the Fall 2018 semester. The Court now finds that [Anne] has changed counsel, who is not available for trial. However, the Court finds that the prejudice to [Robert] in continuing the trial exceeds that of [Anne] choosing new counsel.

On July 27, 2018, Anne filed an answer and counterclaim denying Robert's allegations that a material change in circumstances had occurred, denying that a change in custody was in Erin's best interests, requesting a modification of child support, and an award of attorney fees.

On August 1, 2018, Anne filed a motion to continue the trial on the basis that the discovery process was not complete; that, during a July 17 telephonic hearing on her motion to continue the trial, counsel learned of Robert's intention to use the transcript of Huckins' deposition, whose deposition was set for that afternoon, in lieu of live testimony; counsel notified the court and defense counsel that she would not be appearing at Huckins' deposition on July 17 due to the improper notice of a deposition in lieu of live testimony and consequently, Anne was unrepresented at the deposition; and a continuance was necessary in order for Anne's counsel to conduct her own discovery of Huckins. Robert's counsel objected to the motion to continue; however, on August 3, he filed a motion to amend his complaint to request that, should Robert be awarded primary physical custody of Erin, that the court also order that he be the sole determiner of any appropriate medical care necessary for Erin.

Following the filing of Robert's motion to amend his complaint, Anne filed an amended motion for the continuance of the trial, and affidavit in support thereof, adding the allegation that Robert filed a motion to amend his complaint on August 3, 2018; she was allowed 30 days, pursuant to court rules, to file an answer; and if Robert was allowed to amend his complaint and a continuance was not granted, Anne would be deprived of her right to answer Robert's amended allegations. Robert withdrew his motion to amend his complaint so that the parties could proceed to trial as scheduled on August 7.

3. TRIAL

The trial began as scheduled on August 7, 2018. Witnesses at trial included Robert, Anne, and two of their adult children, Lucas Huddleston and Bridget Huddleston. Erin testified in camera with the attorneys, but not her parents, present.

(a) Parties' New Relationships and Employment

At the time of the modification hearing, both Robert and Anne had remarried. In July 2018, Robert married Kathy who was Erin's former dance instructor in Kearney. When Erin is in Kearney, she lives with Robert, her stepmother, Kathy, and her stepbrother, Zane. Erin had been involved in dance classes and competitive dance from the time she was approximately 5 years old, which is how Erin came to know Kathy, who was the owner of the dance studio. Anne married Michael Cudaback in August 2016. When Erin is in Omaha, she lives with...