Background
Macie and Kody Dickes married in February 2024 and have two daughters. After law enforcement searched their home in October 2024 while investigating Kody for possession of child pornography, Macie filed for dissolution and received temporary sole custody. Kody later received supervised parenting time, but he was arrested and detained on federal child-pornography charges before the dissolution trial.
Kody sought to participate in the May 2025 trial remotely, but the jail required a writ. On the morning of trial, his attorney orally requested a continuance because the writ had not been timely provided and Kody could not appear. The district court denied the request and proceeded with Kody represented by counsel. The resulting decree awarded Macie sole custody, ordered no parenting time for Kody, and required him to pay a $44,885 property settlement reflecting portions of the home-sale proceeds and a bank account treated as marital property.
The Court’s Holding
The Nebraska Court of Appeals affirmed the denial of a continuance. Although Kody had not previously requested a continuance and the case implicated important parental rights, his oral request did not comply with the statutory requirement for a written motion supported by an affidavit. He also waited until trial was about to begin despite learning nine days earlier that a writ was required, and the record did not establish diligent efforts to secure his appearance. His attorney nevertheless participated fully, cross-examined Macie, and offered evidence.
The court also upheld the property division because Kody failed to prove that the disputed appreciation and bank funds were nonmarital. It further affirmed the absence of parenting time. The criminal allegations alone did not establish that contact would harm the children, particularly because Kody had not been tried and Macie did not oppose virtual or telephone contact. But there was no evidence about what communications the jail permitted or how contact could be facilitated, so the district court could not fashion a sufficiently specific parenting plan. The decree did not prevent Kody from seeking modification if his circumstances change and additional information becomes available.
Key Takeaways
- A same-day oral continuance request may be denied when the movant does not comply with Nebraska’s written-motion and affidavit requirements and fails to demonstrate diligence.
- A spouse claiming that property is nonmarital bears the burden of tracing and proving that claim; unsupported assertions or missing financial records may result in marital classification.
- Incarceration and unproven criminal allegations do not automatically justify denying parenting time, but a court need not order contact when the record does not show what contact is permitted or how it can occur.
Why It Matters
The decision underscores the importance of building an evidentiary record in dissolution proceedings. Attorneys seeking an incarcerated client’s participation should timely obtain and serve any required writ and document those efforts in a compliant continuance motion. Parties claiming nonmarital property likewise should provide tracing records rather than rely on testimony that funds came from a premarital source.
The parenting-time ruling is expressly tied to the circumstances existing at trial. It leaves room for a later modification request once Kody’s criminal status, place of confinement, available communication methods, and the children’s best interests can be assessed on a fuller record.