In the Matter of the Guardianship of K.M.S., a Minor, No. 81946, Order of Affirmance (Unpublished Disposition, Feb. 17, 2022)
This is an appeal from a district court order appointing minor K.M.S.’s paternal grandmother as her general guardian. Appellant father’s constitutional challenges were all struck down: he had been given proper notice of the guardianship hearing, he had no right to counsel in this matter, and the district court may, in civil cases, make negative inferences from a witness’ improper invocation of the Fifth Amendment in a civil action.
Appellant’s non-constitutional challenges failed as well. He was incarcerated at the time of the child’s removal to be made a ward of the juvenile court, and K.M.S.’ mother was found to have previously abused or neglected her. Furthermore, a child need not be denied stability while waiting for her guardian to address the issues that led to her removal. His proffered tape recordings and documents were inadmissible hearsay. No abuse of discretion was established.
Calkins v. Huber, No. 83053, COA Order of Reversal and Remand (Unpublished Disposition, Feb. 17, 2022)
This is an appeal from a district court order denying appellant Calkins’ request to change custody and granting a permanent custody order to Huber.
The parties’ 2016 stipulated divorce agreed to joint legal and physical custody of the two children and that Calkins could temporarily relocate to Idaho for two years to complete her education.
After an evidentiary hearing in 2020, Huber was granted temporary sole physical custody with supervised parenting time to Calkins. In 2021, Calkins filed a pro se motion requesting the children be returned to her custody in Idaho. Huber opposed and filed a countermotion to make his temporary custody permanent. The district court summarily denied Calkins’ motion and granted Huber’s countermotion.
The Court of Appeals reversed and remanded. It was error to not give Calkins an opportunity to oppose Huber’s countermotion, and to enter a permanent custody order without an evidentiary hearing or a finding that no further hearing was required under Rooney.
Barber v. Barber, No. 83201, COA Order of Reversal and Remand (Unpublished Disposition, Feb. 17, 2022)
This is an appeal from a district court order denying a motion to set aside a default judgment. The parties were married in 2013 and had two children One of the children reported being sexually abused by Ronald, who was later arrested and prosecuted. Brianna filed for divorce requesting sole custody, child support and division of property. The summons and complaint was delivered to Ronald’s criminal defense attorney, who signed an acceptance of service. Ronald never answered. The same attorney later signed an acceptance of notice of intent to take default.
The district court set the matter for a prove-up hearing and entered a decree of divorce distributing 100% of the marital home to Briana, plus custody and support. When Briana moved to have the house title put in her name, Ronald appeared through other counsel, opposing Briana’s motion for title and counter-claiming to set the decree aside, asserting he had never received notice and never authorized his criminal attorney to accept service. The district court denied his countermotions since a Nevada attorney had signed the acceptance of service. Ronald appealed.
The Court of Appeals reversed and remanded, finding the district court abused its discretion by not resolving the factual dispute as to whether appellant gave his criminal defense attorney consent to accept service of the divorce complaint.