A child custody dispute between a Hastings judge and his ex-wife could be bound for the Nebraska Supreme Court.
The 14-year-old boy had lived in Kansas with his mother, Kerry Burns, from age 2 until another Nebraska judge granted Adams County Court Judge Michael Burns custody on Aug. 11, 2014, following a trial, according to Kerry Burns.
On Dec. 1, an opinion by the Nebraska Court of Appeals vacated Dawson County District Judge James Doyle IV's decision because the judge's ex-wife never was served with a summons at the start of the case.
"Kerry is obviously elated that the rule of law has prevailed, and that the Court of Appeals has vacated the trial court's decision changing custody of her youngest child from her to her ex-husband," said her attorney, Matt Catlett of Lincoln.
But, he said, she is still deeply troubled by what happened and by how long it took to resolve.
"That's 16 months that she cannot get back," Catlett said.
On Monday, Hastings attorney Bob Sullivan, who represents Michael Burns, said the Nebraska Rules of Professional Conduct for attorneys prohibit him from commenting.
"Nor can I allow my client to comment on it while the matter is still pending in the court system," he said in an email.
Sullivan filed a motion for temporary custody in the district court and asked for a rehearing in the Court of Appeals.
If the rehearing is denied, the case likely will be appealed to the Nebraska Supreme Court. Catlett said he sees Sullivan's motions as delay tactics to keep the case from being remanded to district court sooner.
In a phone interview, Kerry Burns, who lives in Wichita, said her ex-husband has sued for custody before, but this is the first since he was appointed a county judge in 2011.
The day the appeals court issued its opinion, she said, she emailed him to say that she wanted to pick up their son after school the next day. He didn't respond, she said, and she learned the next day from her son that his dad had taken him from school to the Fillmore County Courthouse in Geneva.
In an affidavit filed later in court, Michael Burns said he had wanted to avoid any commotion or potential confrontation at school.
On Dec. 2, Kerry Burns' fiance took a video on his cellphone as he waited with her outside of Michael Burns' courtroom to see her son.
The Fillmore County Sheriff asked her what was going on, and when she said she was there to pick up her son he told her she didn't have custody. He said a print-out of the decision wasn't a court order because it wasn't signed by a judge.
When Michael Burns came into the hallway, he told her custody didn't change as a result of the Court of Appeals decision. "Not until a mandate has spread," he said.
Appeals Court Judge Francie Riedman, who wrote the Dec. 1 Burns v. Burns decision, said because Michael Burns failed to serve Kerry Burns by Dec. 28, 2013, the action stood dismissed on that day.
"Likewise, all court orders issued after Dec. 28, 2013, were also null," she wrote, saying that the district court and the Court of Appeals both lacked the power to determine the merits of the application to change custody.
But last week, Doyle -- a judge assigned in 2013 to hear the case because he is from a different judicial district than Michael Burns -- took up the motion for temporary custody.
In an affidavit supporting the motion seeking temporary custody, Michael Burns said his son has thrived since moving to Sutton to live with him and his current wife. He also said Kerry Burns refused to bring their son back to Nebraska the night of Dec. 6, a date set up in the court-ordered parenting plan after the trial.
Catlett argued in an over-the-phone hearing before Doyle on Thursday that the court had no jurisdiction, as the appeals court said in its order.
On Friday, Doyle issued an order directing Kerry Burns to immediately return the teenager to his father's custody so he can continue to attend classes in Nebraska at least until Christmas break.
Monday night, his mother said the boy is going to school in Kansas and is happy and relieved to be home.
"The judge's ruling came in a week after (he) started school in Wichita," she said in an email. "(He) does not want to return to his father's."
Kerry Burns said she plans to appeal Doyle's last order and said she assumes the Appeals Court will restate that he does not have jurisdiction and there is no case on which to rule.
"There was no pending case in district court and I was not served with a summons," she said. "Judge Doyle's office called telling me about the telephonic hearing and his bailiff told me that if I didn't show up, the judge just might rule in Mike's favor.
"It felt like a back-room deal ... that the judge ruled in Mike's favor, simply because Mike asked him to do it, regardless of the law, regardless of evidence lacking, regardless of the best interest of the child."
She said she hopes she and Michael Burns can agree on a new parenting plan for the eighth-grade boy.