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Kumke v. Kumke7/30/2002
INTRODUCTION
Mark D. Kumke filed an application in the district court for Clay County, Nebraska, seeking to modify the decree entered in the previous dissolution proceedings involving Mark and Tina M. Kumke. Mark requested the court to change the award of custody of the parties' children from Tina to himself. The district court found that a material change in circumstance had occurred since the entry of the decree of dissolution and granted Mark's request for a change of custody. Tina appeals from the district court's order denying her motion for new trial. For the following reasons, we reverse, and remand for further proceedings.
BACKGROUND
The parties were married on February 16, 1991, in Blue Hill, Nebraska, and divorced on March 21, 1997. Two children were born during the marriage: Brock, born January 4, 1993, and Kaitlin, born February 17, 1994. In the decree dissolving the parties' marriage, the district court approved the parties' settlement agreement; determined that both parties were fit and suitable persons to have the care, custody, and control of the minor children; and awarded Tina custody, subject to Mark's reasonable rights of visitation. Child support was also established pursuant to the decree.
Mark initially filed an application to modify decree of dissolution on July 18, 1997; however, this application was apparently dismissed by Mark. Mark then apparently filed the instant application to modify custody sometime in the year 2000. While this application is not contained in the transcript before us on appeal, the district court's order ruling on the instant application stated that Mark alleged (1) that Tina had entered into a course of conduct of attempting to "poison the minor children's minds" against Mark, (2) that Tina had demonstrated an unstable lifestyle, and (3) that because Tina's residence was being foreclosed, she would be without a residence.
Although Tina was represented by counsel at the time of the parties' divorce, her counsel was subsequently allowed to withdraw, and Tina appeared pro se at the June 18, 2001, hearing on Mark's application. Mark was present with his counsel. At the start of the hearing, Tina orally requested a continuance, wherein she indicated that she had undergone back surgery in April, that she had since suffered complications, and that she had a letter from her doctor. The letter was apparently filed with the court on the Friday prior to the Monday hearing. The medical reason identified for Tina's request was that her doctor had indicated that it would not be good for her to sit for prolonged periods. The court did not formally deny Tina's motion for continuance, but, rather, granted Tina permission to stand at the counsel table and gave Tina the opportunity to contact any additional witnesses that she might wish to have present at the hearing. Tina does not raise as error the district court's failure to grant her request for a continuance.
The evidence adduced at the hearing showed that the parties separated in late 1995, before their divorce in March 1997. At the time of their separation, Tina moved from Blue Hill to Deweese, Nebraska. Tina and the children lived in Deweese until July 2000, at which time they moved to Wolbach, Nebraska. The impetus for the move from Deweese to Wolbach was Tina's decision to move in with her boyfriend, who lived in Wolbach. Wolbach is roughly 90 miles north of Blue Hill. Mark continues to live in the family home in Blue Hill, where he has lived since the parties' separation. There was no evidence that Tina was ever without a place to live.
Since the parties' divorce, Tina has had two live-in boyfriends, including her living situation a
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