State ex rel. Keegan M. v. Joshua M.

20 Neb.App. 411

824 N.W.2d 383

STATE of Nebraska on behalf of KEEGAN M., a minor child, appellee,

v. JOSHUA M., defendant and third-party plaintiff, appellee,andAmy B., third–party defendant, appellant.

No. A–12–074.

Court of Appeals of Nebraska.

Dec. 11, 2012.

Syllabus by the Court

[20 Neb.App. 411]1. Parties: Words and Phrases. A necessary party to a suit is one whose interest in the subject matter of the controversy is such that the controversy cannot be finally adjudicated without affecting the indispensable party's interest, or which is such that not to address the interest of the indispensable party would leave the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.

2. Courts: Parties: Jurisdiction. The presence of necessary parties to a suit is a jurisdictional matter and cannot be waived.

3. Motions for Continuance: Appeal and Error. An appellate court reviews a judge's ruling on a motion to continue for an abuse of discretion.

4. Trial: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result.

5. Motions for Continuance. The failure to comply with Neb.Rev.Stat. § 25–1148 (Reissue 2008) is a procedural defect that affects the technical rights of an opposing party. It does not affect the opposing parties' substantial rights.

6. Motions for New Trial: Appeal and Error. An appellate court reviews a judge's ruling on a motion for new trial for an abuse of discretion.

7. Motions for New Trial. Motions for new trial are entertained with reluctance and granted with caution, because of the manifest injustice in allowing a party to allege that which may be the consequence of the party's own neglect in order to defeat an adverse verdict, and, further, to prevent fraud and imposition.

8. Motions for New Trial. To grant a motion for a new trial, a court must also find that the injury materially affected a party's substantial rights.

9. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

10. Child Custody. The decision to award custody of a minor child must be based upon the best interests of the child.

Justin A. Quinn and Casey J. Quinn, Omaha, for appellant.

Karen S. Nelson, of Schirber & Wagner, L.L.P., Papillion, for appellee.

IRWIN, PIRTLE, and RIEDMANN, Judges.

RIEDMANN, Judge.

INTRODUCTION

Amy B. appeals an order of the district court for Douglas County granting Joshua M. custody of the parties' minor child, Keegan M. Because we find no error in the trial court's decision, we affirm.

BACKGROUND

Keegan, born in March 2003, is the biological child of Joshua and Amy. The State commenced an action to establish Joshua's paternity and compel child support. The court entered an order establishing paternity and compelling child support in December 2007. Amy retained custody of Keegan until the Nebraska Department of Health and Human Services (DHHS) removed him from her home. In November 2008, the separate juvenile court acquired jurisdiction over Keegan on the basis that Keegan lacked proper parental care under Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008). According to a DHHS court report, the juvenile court petition alleged that Amy “subjected Keegan ... to inappropriate and excessive physical discipline” and that she “engaged in domestic violence with ... her live-in boyfriend, in the presence of [Keegan].”

DHHS placed Keegan with Joshua for foster care. Joshua and Keegan initially lived in Carter Lake, Iowa, before moving to Council Bluffs, Iowa, less than 30 minutes from Amy. Keegan attends school in Council Bluffs, and Joshua's wife cares for Keegan when he is at their home. Joshua's child support obligations terminated in March 2009 while Keegan was in his custody.

In October 2009, Joshua filed a motion to add Amy as a necessary party to the pending action in order to address unresolved custody and visitation issues between Amy and Joshua. In the motion, Joshua represented that neither the attorney for the State nor Amy's attorney had any objection to the motion.

After the court granted the motion, Joshua filed an application to modify support and to establish custody and visitation. Amy filed a responsive pleading, and by agreement of the parties, the matter was transferred to the juvenile court. The record presented does not indicate how, or if, the juvenile court ruled on Joshua's application, although a subsequent pleading filed by Amy alleges that the juvenile court terminated its jurisdiction over Keegan without resolving the pending issues.

In the meantime, Keegan flourished in Joshua's care, and in 2010, DHHS recommended terminating the juvenile case and awarding custody to Joshua. DHHS noted that Keegan “found stability in his relationships and in his school setting,” but expressed concern about Amy's interactions with Keegan. In a report, DHHS noted that Amy resided with her boyfriend when their relationship was good. When she and her boyfriend were fighting, Amy lived with her mother. According to the above report, on one occasion, DHHS received a call that police had responded to a fight between Amy and her boyfriend, which fight occurred in front of Keegan, and that the police required Amy and Keegan to leave her boyfriend's home.

DHHS also reported that it had to suspend Amy's unsupervised visits with Keegan after Keegan reported that Amy made derogatory comments about Joshua's wife and threatened bodily harm to her. These conversations with Amy caused Keegan to be “stressed out.” Although DHHS believed Amy had “made progress” participating in rehabilitative services, DHHS stated in its report that “it is also believed that [Amy] has not internalized what she has learned.”

In August 2010, Joshua again filed a motion to add Amy as a necessary third party in order to seek custody of Keegan. The motion was served upon “Douglas County Child Support Enforcement” and Amy. After the court granted the motion, Joshua filed a complaint to modify the order of support in the district court.

The juvenile court judge entered an order that was filed in the present action stating that the juvenile court case was terminated and that the juvenile court no longer had jurisdiction over either Keegan or this matter. That same day, Amy filed in district court a motion for temporary custody of Keegan. In that motion, she alleged she feared that Joshua would remove Keegan from Nebraska. Amy requested temporary care, custody, and control of Keegan as well as child support. The next day, the district court for Douglas County entered an order giving Joshua temporary custody of Keegan. In October 2010, the district court entered a further order clarifying Amy's and Joshua's respective temporary custody and visitation rights to Keegan.

In April 2011, Joshua filed a notice of trial, notifying Amy that the trial date for Keegan's custody determination was set for August 18. On June 15, Joshua filed an amended notice of trial setting a trial date of August 16. On July 11, Amy's attorney filed a motion to withdraw due to a breakdown in the attorney-client relationship. The motion was granted on July 20. The trial court continued the trial to September 22 because of a scheduling conflict. On August 17, Joshua filed another amended notice of trial reflecting the September trial date.

On September 22, 2011, the parties appeared for trial. Joshua was represented by counsel, and Amy appeared pro se. Amy requested a continuance so that she could obtain legal representation. She stated that she had not yet obtained new counsel because she believed the custody issue would be settled. She also requested a continuance because Joshua had not responded to outstanding interrogatories. Amy conceded that she had not compelled Joshua to answer the interrogatories, because she believed the case would be settled.

The court denied Amy's motion for a continuance, noting that Amy had known the case was scheduled for trial since June and had already received a month-long continuance because of the court's scheduling conflict.

At trial, Joshua testified to the history of the case, including DHHS' removal of Keegan from Amy's care and its recommendation that Joshua receive sole physical and legal custody. He testified that in December 2010, while Keegan was at Amy's house, a brick was thrown through Amy's window. This incident raised continuing concerns about Keegan's safety in Amy's custody. He also testified that Keegan had been “[p]sychiatrically hospitalized” and was experiencing hallucinations centering around Amy. Joshua asked that the court grant him sole physical and legal custody subject to visitation by Amy.

Amy argued that she should receive primary custody of Keegan because Joshua is frequently away from home on business and it is Joshua's wife, rather than Joshua, who takes care of Keegan during those times. Amy asked that she be given custody of Keegan at all times other than the “five to seven” days per month that she claimed Joshua was home.

Amy testified that she was concerned Keegan might have a detachment disorder or psychiatric issue because he is in the care of Joshua's wife and away from both of his biological parents for long periods of time. Amy admitted that Keegan has not been diagnosed with detachment disorder, but she said he has been diagnosed with a loss of reality, confusion, and suicidal tendencies. According to Amy, Keegan was admitted to a hospital for a psychiatric evaluation and she was upset that she was excluded from treatment decisions. Those decisions had been made by Joshua's wife.

Amy admitted that she had been a victim of domestic violence and that Keegan had witnessed domestic...