Ojeda v. Wanek

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Raquel Ojeda, appellee, v. Chad Wanek, appellant, State of Nebraska, appellee, and Bryanna Prudhome, intervenor-appellee.

No. A-23-998

Court of Appeals of Nebraska

October 29, 2024

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 Otoe County: Julie D. Smith Judge.

Justin A. Quinn for appellant.

Hannah E. Frankel, of Dornan, Troia, Howard, Breitkreutz, Dahlquist & Klein, P.C., L.L.O., for intervenor-appellee Bryanna Prudhomme.

Riedmann, Chief Judge, and Moore and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

Moore Judge.

INTRODUCTION

The father appeals from an order of the district court for Otoe County denying his motions to dismiss a step-grandmother's complaint for leave to intervene as a person standing in loco parentis in a custody proceeding brought by the father. The court found that the step-grandmother's complaint did not fail to state a claim for which relief can be granted, and it granted her motion to intervene. Because the order granting the motion to intervene is not a final, appealable order, we dismiss the appeal for lack of jurisdiction.

STATEMENT OF FACTS

Raquel Ojeda and Chad Wanek are the biological parents of two minor children. Ojeda died in September 2023 following a cancer diagnosis. Approximately a week after Ojeda's death Wanek filed a complaint to modify, seeking sole legal and physical custody of the children. Wanek's complaint referenced a decree of paternity entered in August 2017 and a previous modification order entered in August 2018, though these orders do not appear in our record on appeal. Wanek alleged that Ojeda's death was a material change in circumstances and that an award of sole custody to him was in the best interests of the children.

Bryanna Prudhome then filed a complaint for leave to intervene. The complaint alleged that Prudhome was the biological mother of Derek Powell, and that Powell and Ojeda had married in March 2023 and remained married until Ojeda's death in September. Powell and Ojeda had been a couple for 8 years prior to their marriage. During this time, Prudhome alleged that she developed a typical grandparent/grandchild relationship with Ojeda's minor children. The complaint asserted that the children had spent time in Prudhome's home for family dinners, sleepovers, holidays, birthdays, and other quality time together. Prudhome claimed that Ojeda Powell, and the children had also lived intermittently with Prudhome over the past 8 years. Prudhome alleged that she had a strong emotional bond with the children.

Prudhome's complaint alleged details regarding the children's custody arrangement. According to Prudhome, the 2017 decree of paternity awarded Ojeda and Wanek joint legal custody of the minor children, with Ojeda having sole physical custody of the children, subject to Wanek's reasonable right to parenting time. The 2018 modification order awarded Ojeda sole legal and physical custody of the minor children. Wanek was awarded agency supervised parenting time every other Saturday and every other Wednesday evening. The complaint alleged that Wanek has not had contact with the children since Thanksgiving 2022 and that he had never been a primary caregiver.

Prudhome alleged that Ojeda and the children moved into her home indefinitely in March 2023 following Ojeda's cancer diagnosis and, since then, Prudhome had been solely responsible for the children's academic, emotional, physical, and mental needs. Prudhome asserted that by assuming such responsibilities, she now stood in loco parentis of the children and that it was in the children's best interests that she be allowed to intervene in the pending custody matter.

A notarized delegation of guardianship, dated September 2, 2023, and signed by both Ojeda and Prudhome, was attached to Prudhome's complaint. The delegation of guardianship named Prudhome as legal guardian of the minor children in the case of Ojeda's death or incapacity and was executed 5 days prior to Ojeda's death.

On October 3, 2023, Wanek filed a motion to dismiss Prudhome's complaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) for failing to state a claim for which relief can be granted. The motion alleged that Prudhome's complaint was "suspicious on its face for being brought by the Grandparent of Raquel's spouse Derek Powell, and not by Derek Powell." Further, Wanek asserted that Prudhome had not alleged sufficient facts to confer in loco parentis status.

On October 19, 2023, Wanek filed a second motion to dismiss Prudhome's complaint, again pursuant to § 6-1112(b)(6). Wanek also filed a statement of undisputed facts and an evidence index.

Wanek's statement of undisputed facts indicated that on February 23, 2023, Iowa social services received an intake report that Powell was touching one of the minor children's breasts and vagina. Following an investigation, the social services made a determination that the allegation of "Sexual abuse, Lascivious Acts with a child, was founded." Subsequently, a criminal complaint was filed in the Iowa courts charging Powell with "Lascivious Acts with a child, a class C Felony." On September 7, the assistant county attorney filed a motion to dismiss the criminal complaint against Powell and the case was dismissed the following day. While the criminal case had been pending, there was a no contact order in place between Powell and the children.

At a hearing on October 30, 2023, the district court took up Wanek's motions to dismiss Prudhome's complaint for leave to intervene. Wanek asked the court:

The first Motion to Dismiss was a straight Motion to Dismiss on the pleadings and no evidence would be offered on. And then the second Motion to Dismiss is, you know, under the same rules of pleading but done as a Motion for Summary Judgment because evidence is to be offered. So I don't know if you want to hear just the motion on the pleadings first and not . . . have the evidence discussed outside of that or if you want to do the Motion . . . to Dismiss that's also a summary judgment. Do you want them together or separate?

The court instructed Wanek to "do them together" and to offer evidence on the motion to dismiss "that's also a Motion for Summary Judgment, please."

Wanek offered four exhibits, including an affidavit of Wanek; an affidavit of Soledad Peterson, Ojeda's mother; a certified copy of Powell's Iowa criminal case; and a certified copy of the documents from Ojeda's estate. These four exhibits were also listed in Wanek's evidence index with his second motion to dismiss.

The district court noted that "[e]ssentially, this is a hearing on a Motion for Summary Judgment" but that the court would also review the pleadings on their face to address Wanek's first motion to dismiss. For purposes of the summary judgment motion, the court asked Prudhome if she had any objection to Wanek's four exhibits. Prudhome offered no objections, and the exhibits were received by the court.

Prudhome also offered three exhibits; an affidavit of Prudhome; an affidavit of Desitiney Nicol, Prudhome's daughter; and Wanek's Iowa child support payment history. Wanek objected to the relevance of the child support payment history and Prudhome responded that the best interests of the children "can be reflective by how the parent has shown support in the past. And the arrearage that Mr. Wanek has accrued is significant." Wanek also objected to the payment history as he had not received a copy of the exhibit. The district court ruled that an adverse party to a motion for summary judgment cannot serve opposing evidence on...