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Case Summaries
Appeal and Error, Expedited Appeal, Juvenile Court

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In this petition for further review, a juvenile contended that a separate juvenile court committed plain error when it did not follow applicable statutory procedures in changing the terms of his probation. The Nebraska Court of Appeals had found that it had no jurisdiction as the appeal was not subject to the expedited review procedures set forth in Neb. Rev. Stat. §§ 43-287.01 to 43-287.06 (reissue 2004), which require submission to a juvenile review panel. The Nebraska Spring court concludes that appellate jurisdiction exists and that there is plain error which requires reversal.

In re Interest of Markice M., 275 Neb. 908 (2008)

Supreme Court Headnotes

Judgments:

1.  Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is a matter of law that requires an appellate court to reach an independent conclusion irrespective of the determination made by the court below.

Statutes:

1.  Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

Juvenile Courts:

1.  Appeal and Error. Neb. rev. Stat. §§ 43-287.01 to 43-287.06 (reissue 2004) provide the sole method of reviewing juvenile court dispositional orders falling within the ambit of the expedited appeal process specified therein. ••• A two-part test must be applied to determine whether an expedited review is required under Neb. rev. Stat. §§ 43-287.01 to 43-287.06 (reissue 2004). First, the order must implement a different plan than that proposed by the department of Health and Human Services. Second, there must exist a belief that the court-ordered plan is not in the best interests of the juvenile.

2.  Probation and Parole. Neb. rev. Stat. § 43-286 (reissue 2004) does not allow a juvenile court to place a juvenile on probation or exercise any of its other options for disposition and at the same time continue the disposi-tional hearing.

Appeal and Error.

1.  Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

Date Filed and Case No.: June 13, 2008. No. S-07-572.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-572.pdf

Court Appealed From: Petition for further review from the Court of Appeals, Inbody, Chief Judge, and Irwin and Cassel, Judges, on appeal thereto from the Separate Juvenile Court of Douglas County, Elizabeth Crnkovich, Judge.

Attorneys for the Appeal: Thomas C. Riley and Nicole L. Cavanaugh for Markice M., appellant. Donald W. Kleine and Eric W. Wells for State of Nebraska, appellee.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Stephan, J.

Summary: Based upon a plea of admission, the separate juvenile court for Douglas County adjudicated Markice M. as a child within the provisions of Neb. Rev. Stat. § 43-247(1) (Cum. Supp. 2006) on November 6, 2006. Following a disposition hearing held on February 1, 2007, the juvenile court entered an order placing Markice under the supervision of a probation officer, but allowing him to remain in his home. A review hearing was scheduled for August 1, 2007. However, on March 13, 2007, the court held a hearing on a “Motion for Immediate Custody” and the juvenile court ordered Markice to be released from the Douglas County Youth Center to his parent and further ordered him to be placed in the temporary custody of the Department of Health and Human Services, Office of Juvenile Services (OJS), “for purposes of obtaining a community based evaluation.” The record does not disclose when or why Markice was detained at the youth center.

     On April 30, 2007, the juvenile court conducted an “evaluation hearing,” and an evaluation report completed by OJS recommended that Markice remain in the parental home subject to intensive supervision probation and that he be required to participate in individual and family therapy. The juvenile probation officer informed the court that she was concerned about Markice’s safety and recommended that he be placed in a group home. Markice, through counsel, argued that group home placement was not warranted and that he should be allowed to remain in the parental home. The juvenile court entered an order on May 1 requiring the probation officer to make application for group home placement.

     Markice filed a timely notice of appeal. On the State’s motion, the Court of Appeals summarily dismissed the appeal for lack of jurisdiction, concluding that it should have been filed with the juvenile review panel pursuant to §§ 43-287.01 to 43-287.06. The Nebraska Supreme Court granted the petition for further review filed by Markice.

Did the court of appeals err in dismissing the appeal for lack of jurisdiction?

Sections 43-287.01 to 43-287.06 provide the sole method of reviewing juvenile court dispositional orders falling within the ambit of the expedited appeal process specified therein. Under § 43-287.03, a two-part test must be applied to determine whether an expedited review is required. First, the order must implement a different plan than that proposed by the department. Second, there must exist a belief that the court-ordered plan is not in the best interests of the juvenile.

     The issue in this appeal is not which of two alternatives is in the best interests of the juvenile. Rather, because the second part of the two-part test clearly is not met, the Supreme Court concluded that this appeal is not subject to the expedited review procedures set forth in §§ 43-287.01 to 43-287.06, and the Court of Appeals erred in dismissing the appeal for lack of jurisdiction.

Did the juvenile court err in changing the terms of that juvenile’s probation from in-home placement to group home placement without following the procedures specified in Neb. Rev. Stat. § 43-286(4) (Reissue 2004)? Markice did not raise this issue in the juvenile court, but urged the Court reach the issue as plain error. The State contends that § 43-286(4) is inapplicable because the hearing which led to the change was a “continued dispositional hearing” and the order requiring group home placement was thus a part of the original dispositional phase of the juvenile proceeding, not a subsequent modification.

     That Supreme Court agreed with the Nebraska Court of Appeals that § 43-286 “does not allow the juvenile court to place a juvenile on probation or exercise any of its other options [for disposition], and at the same time continue the dispositional hearing.” Here, the juvenile court did not purport to do so in its dispositional order of February 13, 2007. rather, it placed Markice on probation while permitting him to remain in his home, and scheduled a “probation review hearing” for August 1. The disposition was complete upon entry of that order. The subsequent order requiring group home placement therefore constituted a change in the terms of probation specified in the dispositional order. When the State contends that a juvenile placed on probation has violated a term of probation or an order of the court, it is required to file a motion to revoke or change the disposition. Knows such motion was filed here. The record does not include a motion containing factual allegations that Markice violated a term of his probation or an order of the court. The hearing at which the court decided to change its original disposition was for the purpose of reviewing the evaluation previously ordered by the court. The probation officer recommended group home placement due to safety concerns, not probation violations.

     The Supreme Court found that the order requiring Markice to be placed in a group home had the effect of changing a term of his previously ordered probation without following the applicable statutory procedure. Thus, the Court found plain error.

Conclusion: For the reasons discussed in the opinion, the Nebraska Supreme Court reversed the order of dismissal entered by the Court of Appeals and remanded the cause to that court with directions to vacate the order entered May 1, 2007, by the Separate Juvenile Court of Douglas County, and to remanded the cause to that court for further proceedings consistent with this opinion. REVERSED AND REMANDED WITH DIRECTIONS.


Attorney Discipline, Failure to Promptly Respond to Counsel for Discipline's Requests

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The office of the Counsel for Discipline of the Nebraska Supreme Court filed formal charges against an attorney here. After a formal hearing, the referee concluded the attorney had violated the Code of Professional responsibility, the Nebraska rules of Professional Conduct, the Nebraska Supreme Court’s disciplinary rules, and his oath of office as an attorney, and recommended a suspension of 1 year. While the Court adopted the findings of the referee, they did not accept the discipline recommended by the referee and instead imposed more stringent discipline.

State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881 (2008)

Supreme Court Headnotes

Disciplinary Proceedings.

1.  A proceeding to discipline an attorney is a trial de novo on the record. ••• Violation of a disciplinary rule concerning the practice of law is a ground for Discipline. ••• The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances. ••• Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances. ••• For purposes of determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney’s acts both underlying the events of the case and throughout the proceeding. The determination of an appropriate penalty to be imposed on an attorney in a disciplinary proceeding also requires the consideration of any aggravating or mitigating factors.

2.  Proof. To sustain a charge in a disciplinary proceeding against an attorney, a charge must be supported by clear and convincing evidence.

3.  Appeal and Error. When no exceptions to the referee’s findings of fact are filed by either party in an attorney discipline proceeding, the Nebraska Supreme Court may, in its discretion, consider the referee’s findings final and conclusive.

Date Filed and Case No.: June 13, 2008. No. S-07-182.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-182.pdf

Court Appealed From: Original action.

Attorneys for the Appeal: Kent L. Frobish for State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator. William L. Switzer, Jr., respondent, pro se.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, and Miller-Lerman, JJ.

Not Participating: McCormack, J.

Authored By: Per Curiam.

Summary: On February 22, 2007, formal charges were filed by the office of the Counsel for Discipline against respondent, William L. Switzer, Jr., alleging that Switzer had violated a number of provisions of the Code of Professional responsibility.

     A referee’s hearing was held which revealed that Switzer was retained by Lori Carney and Charles Daubs on or about March 23, 2005, to have Carney and Daubs appointed as coguardians and co- conservators for their mother, Marion Daubs (Marion). Meanwhile, on or about March 23, 2005, unbeknownst to Carney and Daubs, Marion signed a power of attorney naming Mark Milone as her attorney in fact (previously, Carney had held Marion’s power of attorney.) Marion had a stroke on April 2. Milone notified Carney on April 4, 2005, that her appointment had been revoked and that he now held Marion’s power of attorney. On April 8, Milone notified Switzer of his appointment and requested that he be notified of the commencement of the coguardians and coconservators action. However, on April 12, Switzer filed an ex parte emergency petition for appointment of temporary coguardians and coconservators. This petition failed to list Milone as an interested party, nor was the judge notified of the power of attorney held by Milone. The petition was granted but later terminated on April 15, when Milone filed a petition to terminate the temporary coguardianship and coconservatorship. Switzer was notified that same day that the guardianship-conservatorship had been terminated but failed to notify Carney or Daubs. Carney was notified of the termination on April 19.

     Subsequent to this notification, Carney and Daubs unsuccessfully attempted to contact Switzer on at least four separate occasions but Switzer failed to communicate with them. On May 3, 2005, Daubs wrote to Switzer to terminate the attorney-client relationship and requested an accounting of services rendered, as well as the return of the unused portion of the $500 retainer. An accounting was never provided nor did Switzer produce any evidence regarding any portion of the retainer. Carney and Daubs then retained new counsel and this counsel contacted Switzer and requested a copy of the file. Such was never provided to new counsel.

     On December 13, 2005, the Counsel for Discipline received a letter from Carney regarding Switzer’s representation. The Counsel for Discipline forwarded the letter to Switzer for his response. On January 10, 2006, Switzer responded to the letter, noting that the file was in storage, but that he would have it retrieved. Despite indicating that he would respond further once the file had been retrieved, and despite the fact that additional letters were sent to him from the Counsel for Discipline no additional response was received. The matter was upgraded to a formal grievance on April 13; Switzer’s response was received on April 18. The April 18th response promised copies of letters, however in response to a question by the referee with regard to letters which were promised, Switzer admitted that one of these letters was a “fabrication.”

     The referee’s report continued on with a number of requests by the Counsel for Discipline to Switzer in which responses were not made. The referee issued his report on noting that “Switzer’s unwillingness to respond properly and adequately carried on following the appointment of the undersigned as referee.” The referee stated that he had asked Switzer to file a “proper Answer, which . . . Switzer promised to do, but didn’t do. Also . . . Switzer indicated that he would conduct discovery, which he never did.” The referee then concluded Switzer’s conduct was in violation of DR 1-102(A)(1), (4), (5), and (6); DR 6-101(A)(3); DR 7-101(A)(2) AND (3); DR 7-102(A)(3); DR 9-102(A)(1) and (2), and DR 9-102(B)(3) and (4) of the Code of Professional responsibility; Rule 8.4 of the Nebraska Rules of Professional Conduct; Neb. Ct. R. of Discipline 9(e) (rev. 2001); and his oath of office as an attorney. The referee recommended that Switzer be temporarily suspended from the practice of law for a period of 1 year. No exceptions to this report were filed. On October 29, the Counsel for Discipline filed a motion for judgment on the pleadings, requesting that the Nebraska Supreme Court accept the referee’s recommendation and enter judgment thereon.

What were the Nebraska Supreme Court’s findings? Based upon the undisputed findings of fact in the referee’s report, which they considered to be final and conclusive, the Court concluded the formal charges were supported by clear and convincing evidence. Accordingly, the Court granted in part the Counsel for Discipline’s motion for judgment on the pleadings.

What was the discipline imposed? In his report, the referee recommended that with respect to the discipline to be imposed, Switzer should be suspended from the practice of law for 1 year. The Nebraska Supreme Court disagreed with the referee’s recommendation, “and to the extent that the Counsel for Discipline’s motion for judgment on the pleadings requests that this court accept the referee’s recommendation with respect to discipline, we overrule that motion.”

     The Court noted that the formal charges in this case alleged that Switzer failed to reveal to the county court the fact that Milone held Marion’s power of attorney. When this failure was discovered, the guardianship-conservatorship was terminated but although Switzer was notified of this termination, he did not inform his clients. Each client attempted to contact Switzer, but was unable to do so and Switzer failed to turn over the file to the clients’ new counsel and to provide a detailed accounting. The Court was concerned by Switzer’s failure to reveal the information regarding Milone’s holding of Marion’s power of attorney. They also expressed concern over Switzer’s lack of communication with his clients and his failure to respond to the Counsel for Discipline’s inquiries.

     “Switzer’s failure to cooperate is only compounded in this case in that Switzer admitted to fabricating a document during the course of the Counsel for Discipline’s investigation.” The Court considered this fabrication to move beyond failing to cooperate with the Counsel for Discipline; instead, such action directly interfered with the investigation. “While there is no indication from the Counsel for Discipline that the fabricated letter impeded its investigation in any meaningful way, this court cannot and will not overlook Switzer’s behavior on this point.”

     The Court also took note of the referee’s notation as an aggravating factor, Switzer’s two prior private reprimands. And the referee further indicated that Switzer was not particularly cooperative throughout the disciplinary process following the filing of formal charges.

     Based upon our consideration of the record in this case, this court finds that Switzer should be and hereby is suspended from the practice of law for a period of 18 months, effective immediately.

Conclusion: The motion of the Counsel for Discipline was sustained in part and in part overruled. The Court adopted the referee’s findings of fact and concluded that Switzer has violated the Code of Professional responsibility, the Nebraska Rules of Professional Conduct, and his oath of office as an attorney. However, it was the judgment of the Court that Switzer should be and hereby is suspended from the practice of law for 18 months, effective immediately. JUDGMENT OF SUSPENSION.


Attorney Discipline, Neglect and Failure to Pursue Matters for Client

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This disciplinary case leads to a 30 day suspension of an attorney’s license to practice law where the attorney “seriously neglected and failed to complete a matter entrusted to him and that his failure to promptly pursue the matter adversely affected his client’s interests.” The referee characterized the attorney as “an unfortunate example of an inexperienced solo practitioner entering into a project and representation which was beyond his legal experience and training” who had failed to seek the assistance of attorneys who could have helped him.

State ex rel. Counsel for Dis. v. Barnes, 275 Neb. 914 (2008)

Supreme Court Headnotes

Disciplinary Proceedings:

1.  To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender’s present or future fitness to continue in the practice of law. ••• The Nebraska Supreme Court evaluates each attorney discipline case individually, in light of its particular facts and circumstances. ••• In attorney discipline cases, the Nebraska Supreme Court considers (1) aggravating and mitigating circumstances, (2) the attorney’s conduct underlying the charges and throughout the proceeding, and (3) the propriety of a sanction with the sanctions imposed in similar cases.

2.  Appeal and Error. In attorney discipline and admission cases, the Nebraska Supreme Court reviews recommendations de novo on the record, reaching a conclusion independent of the referee’s findings. ••• When credible evidence in an attorney discipline proceeding is in conflict on material issues of fact, the Nebraska Supreme Court considers and gives weight to the fact that the referee heard and observed the witnesses and accepted one version of the facts rather than another.

Date Filed and Case No.: June 13, 2008. No. S-07-709.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-709.pdf

Court Appealed From: Original action.

Attorneys for the Appeal: John W. Steele for State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator. No appearance for Timothy B. Barnes, respondent.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Per Curiam.

Summary: The Counsel for Discipline of the Nebraska Supreme Court charged respondent, Timothy B. Barnes, with violating his oath of office under Neb. Rev. Stat. § 7-104 (reissue 1997) and the following provisions of the Nebraska Rules of Professional Conduct: Rule 1.3 (duty to act with reasonable diligence and promptness in representing client), Rule 1.4 (duty to promptly communicate with client about means of accomplishing client’s goals, status of matter undertaken, and client’s reasonable requests for information), and Rule 1.16 (duty to protect client’s interest upon termination of representation). The charges stemmed from Barnes’ negligent handling of his client’s legal matter and his failure to communicate with the client.

     Barnes was retained by an animal welfare group, Hi Plains Animal Welfare Society (HiPAWS), to help it obtain nonprofit corporation status. After HiPAWS retained Barnes, he failed to complete the matter and failed to notify HiPAWS that he was unable to do so. He did not return any of the money HiPAWS paid for his fee and expenses until after the Counsel for Discipline had filed formal charges against him. The evidence does not show that he has repaid the full amount of his unearned fee.

     The referee who was appointed here found Barnes had fully cooperated with the Counsel for Discipline, had admitted most of the allegations, had expressed remorse over his failure to complete the application, and intended to repay the remaining $500. The referee further found that there was clear and convincing evidence to support the formal charges. The referee specifically found that Barnes had failed to take reasonable steps to protect his client’s interest, such as giving reasonable notice of his termination of representation, allowing time for employment of other counsel, and refunding all advanced payment of fees or expenses that he had not earned or incurred.

     Regarding mitigating considerations, the referee found that Barnes had made a good faith effort to do the work because the application was two-thirds completed. He also found that Barnes had returned the documentation HiPAWS had provided. Finally, he found that Barnes had left Nebraska for personal and family issues and was now employed as a prosecutor within the realm of his experience and training.

     But the referee characterized Barnes as “an unfortunate example of an inexperienced solo practitioner entering into a project and representation which was beyond his legal experience and training” who had failed to seek the assistance of attorneys who could have helped him. He recommended that Barnes be publicly censured and reprimanded. The Counsel for Discipline takes exception to the referee’s recommendation of a public censure and reprimand under these facts.

Findings and sanctions. The Nebraska Supreme Court found clear and convincing evidence in the record that Barnes has violated his oath of office as an attorney under § 7-104 and the following provisions of the Nebraska Rules of Professional Conduct: Rules 1.3, 1.4, and 1.16. The Court said that the evidence shows that Barnes seriously neglected and failed to complete a matter entrusted to him and that his failure to promptly pursue the matter adversely affected his client’s interests. A HiPAWS member testified that the group decided not to pursue the § 501(c)(3) application after its money was refunded because another animal welfare society had since been organized in the county. In addition, we note that although Barnes did not appear before this court, the Counsel for Discipline reported that Barnes has still not repaid the remaining $500 of his unearned fee.

     As mitigating factors, the Court recognized that during some of the time Barnes neglected his client’s legal matter, he was contending with a series of personal and family health issues that undoubtedly caused him mental and financial stress. They noted that he cooperated with the Counsel for Discipline, admitted most of the allegations in the formal charges, and acknowledged responsibility for his actions. There is also no record of other complaints against Barnes, and he is no longer engaged in the private practice of law.

     Despite Barnes’ personal problems, however, the Court found troubling his failure to seek assistance on a matter about which he had little experience. This failure occurred before the bulk of his personal and family health problems began, and those problems were not so severe as to totally excuse his failure to promptly communicate with his client. “After a de novo review, it is the judgment of this court that Barnes be suspended from the practice of law for 30 days, beginning immediately. Barnes’ license to practice law shall be reinstated at the end of the 30-day suspension, provided that he has complied with Neb. Ct. r. of discipline 16 (rev. 2004) and further provided that he has repaid to HiPAWS the remaining portion of his unearned fee.” JUDGMENT OF SUSPENSION.


Bankruptcy, Notice of Discharge, County

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After a county treasurer issued tax sale certificates issued for delinquent taxes on real estate to the county, but before the county petitioned for foreclosure, the appellees here filed for chapter 13 bankruptcy, staying the county from enforcing its liens. Under 11 U.S.C. § 108(c) (2000), the county had 30 days after receiving notice of the bankruptcy dismissal to file its petition in foreclosure. The district court found that the county had failed to timely file its petitions for foreclosure. Examining the issue of when did the county receive notice of the bankruptcy dismissal, the Nebraska Supreme Court finds that notice to the county’s treasurer was reasonably calculated to apprise the county that the bankruptcy court had dismissed the appellee’s case and affirmed.

County of Hitchcock v. Barger, 275 Neb. 872 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

     a.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. An appellate court reviews questions of law independently of the lower court’s conclusion.

Actions:

1.  Foreclosure: Liens: Real Estate: Tax Sale: Time. Under Neb. rev. Stat. § 77-1902 (reissue 2003), an action to foreclose a lien for taxes represented by a tax sale certificate shall only be brought within 6 months after the expiration of 3 years from the date of sale of any real estate for taxes or special assessments.

Bankruptcy:

1.  Service of Process: Notice: Time. Neb. rev. Stat. § 25-510.02(2) (reissue 1995) is not relevant to whether a county is properly served with a bankruptcy dismissal notice for purposes of determining whether the 30-day period in 11 U.S.C. § 108(c)(2) (2000) is triggered.

2.  Notice: Time. When deciding whether purported notice of a bankruptcy dismissal is sufficient to trigger the 30-day time limit in 11 U.S.C. § 108(c)(2) (2000), a court should determine whether the notice was reasonably calculated to apprise the claimant that the stay terminated or expired.

Date Filed and Case No.: June 13, 2008. No. S-07-105.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-105.pdf

Court Appealed From: District Court for Hitchcock County: David Urbom, Judge.

Attorneys for the Appeal: D. Eugene Garner for County of Hitchcock, Nebraska, a Political Subdivision of the State of Nebraska, appellant. George G. Vinton for William M. Barger and Randee L. Barger, appellees.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Not Participating in the Decision: Heavican, C.J.

Authored By: Connolly, J.

Summary: County of Hitchcock, Nebraska (the County), brought this action to foreclose two tax sale certificates issued for delinquent taxes on real estate owned by William M. Barger and Randee L. Barger. After the Hitchcock County treasurer issued the certificates to the County, but before the County petitioned for foreclosure, the Bargers filed for chapter 13 bankruptcy. Under 11 U.S.C. § 362(a) (2000), the County was automatically stayed from enforcing its liens when the Bargers filed their bankruptcy petition. Under 11 U.S.C. § 108(c) (2000), the County had 30 days after receiving notice of the bankruptcy dismissal to file its petition in foreclosure. The Bargers argued that the County failed to timely file its petition. The district court agreed and granted the Bargers’ motion for summary judgment. The County appealed.

When could the County file its petitions for foreclosure? The Nebraska Supreme Court noted that under Neb. Rev. Stat. § 77-1902 expresses the time limit an action to foreclose a lien for taxes represented by a tax sale certificate could be brought. Here, the treasurer timely issued separate certificates on both of the delinquent properties, but the Bargers’ filing for bankruptcy affected the time limits under the statute by triggering the automatic stay under 11 U.S.C. § 362(a). Under § 77-1902, the time for filing the foreclosure petition on one of the properties expired on January 27, during the automatic stay. The stay continued until the bankruptcy court dismissed the Bargers’ case on March 18, 2002. The time for filing the petition on the second property, expired on April 1, about 14 days after the stay terminated.

     The Bankruptcy code offers protection for claimants whose claims might expire during the pendency of a bankruptcy stay or before, or within a short time after, the claimant learns of the stay’s termination (11 U.S.C. § 108(c)). Here, January 27 and April 1 are the relevant dates for § 108(c)(1). Both dates occurred before the deadline described in § 108(c)(2), so the extension in § 108(c)(2) applies. Under § 108(c)(2), the County had 30 days following notice of the stay’s termination to file the foreclosure petition for the properties. Therefore, in deciding if the County’s petition was timely, the Court had to determine when the County received notice of the bankruptcy dismissal.

When the County received notice of the bankruptcy dismissal? To trigger the 30-day limit in § 108(c)(2), notice must be reasonably calculated to apprise the claimant that the stay has terminated or expired. Here, the County filed its foreclosure petition on July 15, 2002 so the issue is whether July 15 was within 30 days of the County’s receiving notice. The County contended that it did not receive notice of dismissal when the treasurer received notice because the treasurer was not the proper party to receive the notice relying on Neb. Rev. Stat. § 25-510.02(2) (reissue 1995) to argue that the proper party to receive notice was the Hitchcock County clerk or chief executive officer. The Court’s reading of the statute was that § 25-510.02(2) is relevant for determining how to serve a county when commencing an action involving the county as service of process. But here, the County was not served with notice of the bankruptcy dismissal for purposes of commencing an action involving the County. Therefore, § 25-510.02(2) is irrelevant.

     The County also argued that the County, acting by and through its board, was the “‘holder’” of the certificates and was the “‘creditor’” for purposes of the bankruptcy proceeding. Thus, according to the County, the board was the proper entity to receive notice of the bankruptcy dismissal.

     Here, the bankruptcy dismissal notice was pertinent to the County’s foreclosure actions: In effect, the notice announced the termination of the stay that had prevented the County from initiating the foreclosure of its tax sale certificates. We believe it is reasonable to conclude that once the treasurer received the dismissal notice, the treasurer had a responsibility to deliver the notice to the appropriate entity within the county system. Therefore, notice to the treasurer was reasonably calculated to apprise the board that the bankruptcy court had dismissed the case and that the County could initiate its foreclosure action.

     In passing, the Court noted that had a party other than the county acquired the tax sale certificates, notice to the treasurer would not have met the “reasonably calculated” standard. The linchpin of their analysis here, is that the treasurer retained the certificates issued to the County and the relevant parties here are all entities within the county system. “It is not unreasonable to expect the treasurer to forward the notice to the proper entity within the county system. Moreover, the treasurer’s office was the central clearinghouse for the tax sale certificates.”

     The Court concluded that the bankruptcy dismissal notice sent to the treasurer was reasonably calculated to apprise the County that the automatic stay was terminated. Therefore, they found that for purposes of § 108(c)(2), the County received notice of the stay’s termination in March 2002, when the bankruptcy court sent the dismissal notice to the treasurer. Therefore, the County’s foreclosure petition was untimely. Thus, the district court did not err in granting summary judgment for the Bargers and dismissing the County’s petition.

Conclusion: Notice to the treasurer regarding the bankruptcy dismissal was notice reasonably calculated to apprise the County of the automatic stay’s termination. Therefore, for purposes of § 108(c)(2), the County received notice of the stay’s termination in March 2002. Under § 108(c)(2), the County had 30 days to file its foreclosure petition, but the County did not file the petition until July 2002. Thus, the County’s petition was untimely. The district court did not err in granting the Bargers’ motion for summary judgment. AFFIRMED.


Child Support, Judgments, Equity

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The parties to this appeal entered into an agreement, incorporated into a court order, by which the father of a minor child agreed to pay the mother $14,000. If the mother ever sought and received child support, however, the order provided that the father was to receive $14,000 credit against the child support award. The primary issue presented in this appeal is whether such a provision is enforceable. The Nebraska Supreme Court concluded that on the facts of this case, the agreement is enforceable, and affirmed the judgment of the district court.

Jensen v. Jensen, 275 Neb. 921 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

2.  Final Orders. Orders purporting to be final judgments, but that are dependent upon the occurrence of uncertain future events, do not necessarily operate as “judgments” and may be wholly ineffective and void as such. ••• A conditional judgment may be wholly void because it does not “perform in praesenti” and leaves to speculation and conjecture what its final effect may be. ••• While conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.

3.  Equity. The void conditional judgment rule does not extend to actions in equity. ••• Conditional judgments are a fundamental tool with which courts sitting in equity have traditionally been privileged to properly devise a remedy to meet the situation. ••• Where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

4.  Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions.

Property Settlement Agreements.

1.  Where a property division is made pursuant to a voluntary agreement by the parties, a further equitable consideration arises as to the need to protect the parties’ bargaining power and the benefit of a bargain once made.

2.  Presumptions. Where parties have forgone their opportunity to litigate disputes and have chosen instead to enter into an agreement, their reliance on the agreement may be presumed.

3.  Equity. Inequity may result if a court adopts a policy of less than full enforcement of mutually agreed-upon property and support agreements.

4.  Child Support: Public Policy. Public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child.

Child Support.

1.  When overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments, because such a credit would be tantamount to allowing one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits.

2.  Equity. A credit against child support can be granted where equity requires it.

Res Judicata.

1.  The doctrine of res judicata bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the prior action.

Courts:

1.  Judgments. A district court has the inherent power to determine the status of its judgments. ••• The district court may, on motion and satisfactory proof that a judgment has been paid and satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.

Date Filed and Case No.: June 13, 2008. No. S-07-728.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-728.pdf

Court Appealed From: District Court for Douglas County: Patricia A. Lamberty, Judge.

Attorneys for the Appeal: Stephanie Weber Milone for Kathleen A. Jensen, nka Kathleen A. Kerrigan, appellant. Donald A. Roberts for Alan Dean Jensen, appellee.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Gerrard, J.

Summary: Alan Dean Jensen and Kathleen A. Jensen, nka Kathleen A. Kerrigan, are the parents of a minor child whose paternity was adjudicated in a decree entered on December 29, 1999. That decree established joint legal and physical custody, and because Alan and Kathleen were living together at the time, no child support was awarded.

     The decree was modified on March 14, 2000 to establish a schedule for the parties’ physical custody of the child. The 2000 modification did not order ongoing child support, but provided that:

[Alan] has delivered to [Kathleen], the sum of $14,000.00, which amount is considered toward any future child support that [Kathleen] may request from the Court. In the event [Kathleen] does request child support in the future, the $14,000.00 shall be used toward the payment of that child support each month, before [Alan] shall be required to make any actual payments to the Court. In the event [Kathleen] never requests child support during the minority of the child, she shall not be required to repay or credit this money to [Alan].

     Alan testified that the $14,000 payment had been made at Kathleen’s request said that she might be able to purchase a house with a backyard for the child. Kathleen conceded that she received the $14,000 payment and used it to make a downpayment on a house.

     Subsequent modifications eventually led to a March 7, 2006 order, awarding Kathleen sole custody, a visitation schedule and Alan was ordered to pay child support in the amount of $1,100 per month commencing the first month after the signing and entry of the order. The order did not address a credit against the child support award, and there is no indication in the record that Alan raised the issue of a credit at that time.

     On March 29, 2007, Alan filed a declaratory judgment action in the district court, seeking a declaration with respect to the $14,000 credit provision of the March 14, 2000, order. In response, Kathleen alleged that the credit provision was (1) void as a conditional order, (2) void as against public policy, (3) void as impermissibly contracting away the right of the child to receive child support, and (4) barred by res judicata. Kathleen also alleged that the $14,000 payment “has been expended in maintaining and supporting the parties’ minor child” and that she was unable to return it. After trial, the district court rejected each of Kathleen’s arguments. The court concluded that the March 14, 2000, order was valid and enforceable, and declared that Alan was entitled to a credit of $14,000 to be applied to the March 7, 2006, child support award. Kathleen appealed.

Was the credit provision in the March 14 award a void conditional judgment? The Nebraska Supreme Court wrote that conditional judgments are a fundamental tool with which courts, sitting in equity, have traditionally been privileged to properly devise a remedy to meet the situation. Therefore, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

     The Court found that there was no evidence of fraud in this case. The credit provision here was the product of negotiation and agreement by the parties, and was incorporated by the trial court into what was implicitly a fair and reasonable modification of the paternity decree. Even assuming it was subject to collateral attack, the Court wrote that it was not so indefinite as to be unenforceable. They said that the evidence suggested that the provision was an appropriate exercise of the court’s equitable powers, because it made possible a settlement provision that, at the time, was apparently in the child’s best interests. “We reject Kathleen’s claim that the provision was an impermissible conditional order.”

Was the credit provision in the March 14 order unenforceable as against public policy? While public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child, the agreement at issue here did not discharge Alan’s liability for child support. Instead, it expressly provided Alan with credit for a payment that the parties agreed would constitute prepayment of any subsequent child support award. The Court concluded that on the facts of this case, the agreement is enforceable.

     The Court added that when overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments as it would allow one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits. Nonetheless, even then, a credit against child support can be granted where equity requires it. Here, however, Alan does not need equitable relief because this case does not involve a voluntary overpayment. Rather, it involves a payment that was actually incorporated into the court’s order. As such, Alan’s $14,000 payment was neither “voluntary” nor an “overpayment,” because it was the payment specified in the court’s order.

Do principles of equity demand that the credit provision be set aside? The Court wrote that the few courts to have considered comparable circumstances have concluded that giving such credit is appropriate. Such a credit clause does not violate public policy because it is regarded as a lump-sum payment of child support, not a waiver of child support altogether. Further, the agreement still provides regular support for the children, because it is the custodial parent’s responsibility, being aware of the credit provision, to budget the payment accordingly.

Is Alan’s claim for credit against the 2006 child support award barred by res judicata? Kathleen argues that Alan should have asked for credit in the last modification proceeding, and not after the child support award was entered. Therefore, Kathleen asserted that his declaratory judgment action should be barred by res judicata.

     However, a Court noted that Alan’s claim for credit against his child support obligation was not before the court, expressly or implicitly, in the last modification proceeding. Rather, it had been conclusively settled in the March 14, 2000, modification, from which Kathleen did not appeal. Alan was entitled to rely on the provisions of that order, at least until it became clear that he and Kathleen disagreed about its effectiveness. There is nothing in the record to suggest that Alan knew, in the last modification proceeding, that it would be necessary to seek a declaratory judgment to enforce the provisions of the March 14 order. He was not required, in the later proceedings, to anticipate a collateral attack on the credit provision. Instead, Alan’s declaratory judgment action sought to establish, insofar as the $14,000 credit was concerned, that a portion of Alan’s liability for child support had already been discharged.

     While the 2006 child support award set a date upon which Alan’s obligation to pay child support would commence, that did not preclude the court from finding, pursuant to the March 14, 2000, order, that part of the March 7, 2006, award had already been satisfied by Alan’s $14,000 payment.

Conclusion: The credit provision here was not void as a conditional order or as against public policy. Alan’s declaratory judgment action to enforce the provision was not barred by res judicata. Therefore, Kathleen’s assignments of error lacked merit, and the Court affirmed the judgment of the district court. AFFIRMED.


Child Support, Judgments, Public Policy

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The parties to this appeal entered into an agreement, incorporated into a court order, by which the father of a minor child agreed to pay the mother $14,000. If the mother ever sought and received child support, however, the order provided that the father was to receive $14,000 credit against the child support award. The primary issue presented in this appeal is whether such a provision is enforceable. The Nebraska Supreme Court concluded that on the facts of this case, the agreement is enforceable, and affirmed the judgment of the district court.

Jensen v. Jensen, 275 Neb. 921 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

2.  Final Orders. Orders purporting to be final judgments, but that are dependent upon the occurrence of uncertain future events, do not necessarily operate as “judgments” and may be wholly ineffective and void as such. ••• A conditional judgment may be wholly void because it does not “perform in praesenti” and leaves to speculation and conjecture what its final effect may be. ••• While conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.

3.  Equity. The void conditional judgment rule does not extend to actions in equity. ••• Conditional judgments are a fundamental tool with which courts sitting in equity have traditionally been privileged to properly devise a remedy to meet the situation. ••• Where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

4.  Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions.

Property Settlement Agreements.

1.  Where a property division is made pursuant to a voluntary agreement by the parties, a further equitable consideration arises as to the need to protect the parties’ bargaining power and the benefit of a bargain once made.

2.  Presumptions. Where parties have forgone their opportunity to litigate disputes and have chosen instead to enter into an agreement, their reliance on the agreement may be presumed.

3.  Equity. Inequity may result if a court adopts a policy of less than full enforcement of mutually agreed-upon property and support agreements.

4.  Child Support: Public Policy. Public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child.

Child Support.

1.  When overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments, because such a credit would be tantamount to allowing one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits.

2.  Equity. A credit against child support can be granted where equity requires it.

Res Judicata.

1.  The doctrine of res judicata bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the prior action.

Courts:

1.  Judgments. A district court has the inherent power to determine the status of its judgments. ••• The district court may, on motion and satisfactory proof that a judgment has been paid and satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.

Date Filed and Case No.: June 13, 2008. No. S-07-728.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-728.pdf

Court Appealed From: District Court for Douglas County: Patricia A. Lamberty, Judge.

Attorneys for the Appeal: Stephanie Weber Milone for Kathleen A. Jensen, nka Kathleen A. Kerrigan, appellant. Donald A. Roberts for Alan Dean Jensen, appellee.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Gerrard, J.

Summary: Alan Dean Jensen and Kathleen A. Jensen, nka Kathleen A. Kerrigan, are the parents of a minor child whose paternity was adjudicated in a decree entered on December 29, 1999. That decree established joint legal and physical custody, and because Alan and Kathleen were living together at the time, no child support was awarded.

     The decree was modified on March 14, 2000 to establish a schedule for the parties’ physical custody of the child. The 2000 modification did not order ongoing child support, but provided that:

[Alan] has delivered to [Kathleen], the sum of $14,000.00, which amount is considered toward any future child support that [Kathleen] may request from the Court. In the event [Kathleen] does request child support in the future, the $14,000.00 shall be used toward the payment of that child support each month, before [Alan] shall be required to make any actual payments to the Court. In the event [Kathleen] never requests child support during the minority of the child, she shall not be required to repay or credit this money to [Alan].

     Alan testified that the $14,000 payment had been made at Kathleen’s request said that she might be able to purchase a house with a backyard for the child. Kathleen conceded that she received the $14,000 payment and used it to make a downpayment on a house.

     Subsequent modifications eventually led to a March 7, 2006 order, awarding Kathleen sole custody, a visitation schedule and Alan was ordered to pay child support in the amount of $1,100 per month commencing the first month after the signing and entry of the order. The order did not address a credit against the child support award, and there is no indication in the record that Alan raised the issue of a credit at that time.

     On March 29, 2007, Alan filed a declaratory judgment action in the district court, seeking a declaration with respect to the $14,000 credit provision of the March 14, 2000, order. In response, Kathleen alleged that the credit provision was (1) void as a conditional order, (2) void as against public policy, (3) void as impermissibly contracting away the right of the child to receive child support, and (4) barred by res judicata. Kathleen also alleged that the $14,000 payment “has been expended in maintaining and supporting the parties’ minor child” and that she was unable to return it. After trial, the district court rejected each of Kathleen’s arguments. The court concluded that the March 14, 2000, order was valid and enforceable, and declared that Alan was entitled to a credit of $14,000 to be applied to the March 7, 2006, child support award. Kathleen appealed.

Was the credit provision in the March 14 award a void conditional judgment? The Nebraska Supreme Court wrote that conditional judgments are a fundamental tool with which courts, sitting in equity, have traditionally been privileged to properly devise a remedy to meet the situation. Therefore, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

     The Court found that there was no evidence of fraud in this case. The credit provision here was the product of negotiation and agreement by the parties, and was incorporated by the trial court into what was implicitly a fair and reasonable modification of the paternity decree. Even assuming it was subject to collateral attack, the Court wrote that it was not so indefinite as to be unenforceable. They said that the evidence suggested that the provision was an appropriate exercise of the court’s equitable powers, because it made possible a settlement provision that, at the time, was apparently in the child’s best interests. “We reject Kathleen’s claim that the provision was an impermissible conditional order.”

Was the credit provision in the March 14 order unenforceable as against public policy? While public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child, the agreement at issue here did not discharge Alan’s liability for child support. Instead, it expressly provided Alan with credit for a payment that the parties agreed would constitute prepayment of any subsequent child support award. The Court concluded that on the facts of this case, the agreement is enforceable.

     The Court added that when overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments as it would allow one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits. Nonetheless, even then, a credit against child support can be granted where equity requires it. Here, however, Alan does not need equitable relief because this case does not involve a voluntary overpayment. Rather, it involves a payment that was actually incorporated into the court’s order. As such, Alan’s $14,000 payment was neither “voluntary” nor an “overpayment,” because it was the payment specified in the court’s order.

Do principles of equity demand that the credit provision be set aside? The Court wrote that the few courts to have considered comparable circumstances have concluded that giving such credit is appropriate. Such a credit clause does not violate public policy because it is regarded as a lump-sum payment of child support, not a waiver of child support altogether. Further, the agreement still provides regular support for the children, because it is the custodial parent’s responsibility, being aware of the credit provision, to budget the payment accordingly.

Is Alan’s claim for credit against the 2006 child support award barred by res judicata? Kathleen argues that Alan should have asked for credit in the last modification proceeding, and not after the child support award was entered. Therefore, Kathleen asserted that his declaratory judgment action should be barred by res judicata.

     However, a Court noted that Alan’s claim for credit against his child support obligation was not before the court, expressly or implicitly, in the last modification proceeding. Rather, it had been conclusively settled in the March 14, 2000, modification, from which Kathleen did not appeal. Alan was entitled to rely on the provisions of that order, at least until it became clear that he and Kathleen disagreed about its effectiveness. There is nothing in the record to suggest that Alan knew, in the last modification proceeding, that it would be necessary to seek a declaratory judgment to enforce the provisions of the March 14 order. He was not required, in the later proceedings, to anticipate a collateral attack on the credit provision. Instead, Alan’s declaratory judgment action sought to establish, insofar as the $14,000 credit was concerned, that a portion of Alan’s liability for child support had already been discharged.

     While the 2006 child support award set a date upon which Alan’s obligation to pay child support would commence, that did not preclude the court from finding, pursuant to the March 14, 2000, order, that part of the March 7, 2006, award had already been satisfied by Alan’s $14,000 payment.

Conclusion: The credit provision here was not void as a conditional order or as against public policy. Alan’s declaratory judgment action to enforce the provision was not barred by res judicata. Therefore, Kathleen’s assignments of error lacked merit, and the Court affirmed the judgment of the district court. AFFIRMED.


Child Support, Judgments, Res Judicata

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The parties to this appeal entered into an agreement, incorporated into a court order, by which the father of a minor child agreed to pay the mother $14,000. If the mother ever sought and received child support, however, the order provided that the father was to receive $14,000 credit against the child support award. The primary issue presented in this appeal is whether such a provision is enforceable. The Nebraska Supreme Court concluded that on the facts of this case, the agreement is enforceable, and affirmed the judgment of the district court.

Jensen v. Jensen, 275 Neb. 921 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

2.  Final Orders. Orders purporting to be final judgments, but that are dependent upon the occurrence of uncertain future events, do not necessarily operate as “judgments” and may be wholly ineffective and void as such. ••• A conditional judgment may be wholly void because it does not “perform in praesenti” and leaves to speculation and conjecture what its final effect may be. ••• While conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.

3.  Equity. The void conditional judgment rule does not extend to actions in equity. ••• Conditional judgments are a fundamental tool with which courts sitting in equity have traditionally been privileged to properly devise a remedy to meet the situation. ••• Where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

4.  Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions.

Property Settlement Agreements.

1.  Where a property division is made pursuant to a voluntary agreement by the parties, a further equitable consideration arises as to the need to protect the parties’ bargaining power and the benefit of a bargain once made.

2.  Presumptions. Where parties have forgone their opportunity to litigate disputes and have chosen instead to enter into an agreement, their reliance on the agreement may be presumed.

3.  Equity. Inequity may result if a court adopts a policy of less than full enforcement of mutually agreed-upon property and support agreements.

4.  Child Support: Public Policy. Public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child.

Child Support.

1.  When overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments, because such a credit would be tantamount to allowing one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits.

2.  Equity. A credit against child support can be granted where equity requires it.

Res Judicata.

1.  The doctrine of res judicata bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the prior action.

Courts:

1.  Judgments. A district court has the inherent power to determine the status of its judgments. ••• The district court may, on motion and satisfactory proof that a judgment has been paid and satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.

Date Filed and Case No.: June 13, 2008. No. S-07-728.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-728.pdf

Court Appealed From: District Court for Douglas County: Patricia A. Lamberty, Judge.

Attorneys for the Appeal: Stephanie Weber Milone for Kathleen A. Jensen, nka Kathleen A. Kerrigan, appellant. Donald A. Roberts for Alan Dean Jensen, appellee.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Gerrard, J.

Summary: Alan Dean Jensen and Kathleen A. Jensen, nka Kathleen A. Kerrigan, are the parents of a minor child whose paternity was adjudicated in a decree entered on December 29, 1999. That decree established joint legal and physical custody, and because Alan and Kathleen were living together at the time, no child support was awarded.

     The decree was modified on March 14, 2000 to establish a schedule for the parties’ physical custody of the child. The 2000 modification did not order ongoing child support, but provided that:

[Alan] has delivered to [Kathleen], the sum of $14,000.00, which amount is considered toward any future child support that [Kathleen] may request from the Court. In the event [Kathleen] does request child support in the future, the $14,000.00 shall be used toward the payment of that child support each month, before [Alan] shall be required to make any actual payments to the Court. In the event [Kathleen] never requests child support during the minority of the child, she shall not be required to repay or credit this money to [Alan].

     Alan testified that the $14,000 payment had been made at Kathleen’s request said that she might be able to purchase a house with a backyard for the child. Kathleen conceded that she received the $14,000 payment and used it to make a downpayment on a house.

     Subsequent modifications eventually led to a March 7, 2006 order, awarding Kathleen sole custody, a visitation schedule and Alan was ordered to pay child support in the amount of $1,100 per month commencing the first month after the signing and entry of the order. The order did not address a credit against the child support award, and there is no indication in the record that Alan raised the issue of a credit at that time.

     On March 29, 2007, Alan filed a declaratory judgment action in the district court, seeking a declaration with respect to the $14,000 credit provision of the March 14, 2000, order. In response, Kathleen alleged that the credit provision was (1) void as a conditional order, (2) void as against public policy, (3) void as impermissibly contracting away the right of the child to receive child support, and (4) barred by res judicata. Kathleen also alleged that the $14,000 payment “has been expended in maintaining and supporting the parties’ minor child” and that she was unable to return it. After trial, the district court rejected each of Kathleen’s arguments. The court concluded that the March 14, 2000, order was valid and enforceable, and declared that Alan was entitled to a credit of $14,000 to be applied to the March 7, 2006, child support award. Kathleen appealed.

Was the credit provision in the March 14 award a void conditional judgment? The Nebraska Supreme Court wrote that conditional judgments are a fundamental tool with which courts, sitting in equity, have traditionally been privileged to properly devise a remedy to meet the situation. Therefore, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

     The Court found that there was no evidence of fraud in this case. The credit provision here was the product of negotiation and agreement by the parties, and was incorporated by the trial court into what was implicitly a fair and reasonable modification of the paternity decree. Even assuming it was subject to collateral attack, the Court wrote that it was not so indefinite as to be unenforceable. They said that the evidence suggested that the provision was an appropriate exercise of the court’s equitable powers, because it made possible a settlement provision that, at the time, was apparently in the child’s best interests. “We reject Kathleen’s claim that the provision was an impermissible conditional order.”

Was the credit provision in the March 14 order unenforceable as against public policy? While public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child, the agreement at issue here did not discharge Alan’s liability for child support. Instead, it expressly provided Alan with credit for a payment that the parties agreed would constitute prepayment of any subsequent child support award. The Court concluded that on the facts of this case, the agreement is enforceable.

     The Court added that when overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments as it would allow one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits. Nonetheless, even then, a credit against child support can be granted where equity requires it. Here, however, Alan does not need equitable relief because this case does not involve a voluntary overpayment. Rather, it involves a payment that was actually incorporated into the court’s order. As such, Alan’s $14,000 payment was neither “voluntary” nor an “overpayment,” because it was the payment specified in the court’s order.

Do principles of equity demand that the credit provision be set aside? The Court wrote that the few courts to have considered comparable circumstances have concluded that giving such credit is appropriate. Such a credit clause does not violate public policy because it is regarded as a lump-sum payment of child support, not a waiver of child support altogether. Further, the agreement still provides regular support for the children, because it is the custodial parent’s responsibility, being aware of the credit provision, to budget the payment accordingly.

Is Alan’s claim for credit against the 2006 child support award barred by res judicata? Kathleen argues that Alan should have asked for credit in the last modification proceeding, and not after the child support award was entered. Therefore, Kathleen asserted that his declaratory judgment action should be barred by res judicata.

     However, a Court noted that Alan’s claim for credit against his child support obligation was not before the court, expressly or implicitly, in the last modification proceeding. Rather, it had been conclusively settled in the March 14, 2000, modification, from which Kathleen did not appeal. Alan was entitled to rely on the provisions of that order, at least until it became clear that he and Kathleen disagreed about its effectiveness. There is nothing in the record to suggest that Alan knew, in the last modification proceeding, that it would be necessary to seek a declaratory judgment to enforce the provisions of the March 14 order. He was not required, in the later proceedings, to anticipate a collateral attack on the credit provision. Instead, Alan’s declaratory judgment action sought to establish, insofar as the $14,000 credit was concerned, that a portion of Alan’s liability for child support had already been discharged.

     While the 2006 child support award set a date upon which Alan’s obligation to pay child support would commence, that did not preclude the court from finding, pursuant to the March 14, 2000, order, that part of the March 7, 2006, award had already been satisfied by Alan’s $14,000 payment.

Conclusion: The credit provision here was not void as a conditional order or as against public policy. Alan’s declaratory judgment action to enforce the provision was not barred by res judicata. Therefore, Kathleen’s assignments of error lacked merit, and the Court affirmed the judgment of the district court. AFFIRMED.

 

Child Support, Settlement Agreement, Prepayment Incorporated into Judgment

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The parties to this appeal entered into an agreement, incorporated into a court order, by which the father of a minor child agreed to pay the mother $14,000. If the mother ever sought and received child support, however, the order provided that the father was to receive $14,000 credit against the child support award. The primary issue presented in this appeal is whether such a provision is enforceable. The Nebraska Supreme Court concluded that on the facts of this case, the agreement is enforceable, and affirmed the judgment of the district court.

Jensen v. Jensen, 275 Neb. 921 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

2.  Final Orders. Orders purporting to be final judgments, but that are dependent upon the occurrence of uncertain future events, do not necessarily operate as “judgments” and may be wholly ineffective and void as such. ••• A conditional judgment may be wholly void because it does not “perform in praesenti” and leaves to speculation and conjecture what its final effect may be. ••• While conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.

3.  Equity. The void conditional judgment rule does not extend to actions in equity. ••• Conditional judgments are a fundamental tool with which courts sitting in equity have traditionally been privileged to properly devise a remedy to meet the situation. ••• Where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

4.  Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions.

Property Settlement Agreements.

1.  Where a property division is made pursuant to a voluntary agreement by the parties, a further equitable consideration arises as to the need to protect the parties’ bargaining power and the benefit of a bargain once made.

2.  Presumptions. Where parties have forgone their opportunity to litigate disputes and have chosen instead to enter into an agreement, their reliance on the agreement may be presumed.

3.  Equity. Inequity may result if a court adopts a policy of less than full enforcement of mutually agreed-upon property and support agreements.

4.  Child Support: Public Policy. Public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child.

Child Support.

1.  When overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments, because such a credit would be tantamount to allowing one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits.

2.  Equity. A credit against child support can be granted where equity requires it.

Res Judicata.

1.  The doctrine of res judicata bars relitigation not only of those matters actually litigated, but also of those matters which might have been litigated in the prior action.

Courts:

1.  Judgments. A district court has the inherent power to determine the status of its judgments. ••• The district court may, on motion and satisfactory proof that a judgment has been paid and satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.

Date Filed and Case No.: June 13, 2008. No. S-07-728.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-728.pdf

Court Appealed From: District Court for Douglas County: Patricia A. Lamberty, Judge.

Attorneys for the Appeal: Stephanie Weber Milone for Kathleen A. Jensen, nka Kathleen A. Kerrigan, appellant. Donald A. Roberts for Alan Dean Jensen, appellee.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Gerrard, J.

Summary: Alan Dean Jensen and Kathleen A. Jensen, nka Kathleen A. Kerrigan, are the parents of a minor child whose paternity was adjudicated in a decree entered on December 29, 1999. That decree established joint legal and physical custody, and because Alan and Kathleen were living together at the time, no child support was awarded.

     The decree was modified on March 14, 2000 to establish a schedule for the parties’ physical custody of the child. The 2000 modification did not order ongoing child support, but provided that:

[Alan] has delivered to [Kathleen], the sum of $14,000.00, which amount is considered toward any future child support that [Kathleen] may request from the Court. In the event [Kathleen] does request child support in the future, the $14,000.00 shall be used toward the payment of that child support each month, before [Alan] shall be required to make any actual payments to the Court. In the event [Kathleen] never requests child support during the minority of the child, she shall not be required to repay or credit this money to [Alan].

     Alan testified that the $14,000 payment had been made at Kathleen’s request said that she might be able to purchase a house with a backyard for the child. Kathleen conceded that she received the $14,000 payment and used it to make a downpayment on a house.

     Subsequent modifications eventually led to a March 7, 2006 order, awarding Kathleen sole custody, a visitation schedule and Alan was ordered to pay child support in the amount of $1,100 per month commencing the first month after the signing and entry of the order. The order did not address a credit against the child support award, and there is no indication in the record that Alan raised the issue of a credit at that time.

     On March 29, 2007, Alan filed a declaratory judgment action in the district court, seeking a declaration with respect to the $14,000 credit provision of the March 14, 2000, order. In response, Kathleen alleged that the credit provision was (1) void as a conditional order, (2) void as against public policy, (3) void as impermissibly contracting away the right of the child to receive child support, and (4) barred by res judicata. Kathleen also alleged that the $14,000 payment “has been expended in maintaining and supporting the parties’ minor child” and that she was unable to return it. After trial, the district court rejected each of Kathleen’s arguments. The court concluded that the March 14, 2000, order was valid and enforceable, and declared that Alan was entitled to a credit of $14,000 to be applied to the March 7, 2006, child support award. Kathleen appealed.

Was the credit provision in the March 14 award a void conditional judgment? The Nebraska Supreme Court wrote that conditional judgments are a fundamental tool with which courts, sitting in equity, have traditionally been privileged to properly devise a remedy to meet the situation. Therefore, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature.

     The Court found that there was no evidence of fraud in this case. The credit provision here was the product of negotiation and agreement by the parties, and was incorporated by the trial court into what was implicitly a fair and reasonable modification of the paternity decree. Even assuming it was subject to collateral attack, the Court wrote that it was not so indefinite as to be unenforceable. They said that the evidence suggested that the provision was an appropriate exercise of the court’s equitable powers, because it made possible a settlement provision that, at the time, was apparently in the child’s best interests. “We reject Kathleen’s claim that the provision was an impermissible conditional order.”

Was the credit provision in the March 14 order unenforceable as against public policy? While public policy forbids enforcement of a private agreement that purports to discharge a parent’s liability for child support, if the agreement does not adequately provide for the child, the agreement at issue here did not discharge Alan’s liability for child support. Instead, it expressly provided Alan with credit for a payment that the parties agreed would constitute prepayment of any subsequent child support award. The Court concluded that on the facts of this case, the agreement is enforceable.

     The Court added that when overpayments of child support are voluntarily made outside the terms of a court order, the general rule is that no credit is given for those payments as it would allow one party to unilaterally modify the court’s order, which could result in the deprivation of future support benefits. Nonetheless, even then, a credit against child support can be granted where equity requires it. Here, however, Alan does not need equitable relief because this case does not involve a voluntary overpayment. Rather, it involves a payment that was actually incorporated into the court’s order. As such, Alan’s $14,000 payment was neither “voluntary” nor an “overpayment,” because it was the payment specified in the court’s order.

Do principles of equity demand that the credit provision be set aside? The Court wrote that the few courts to have considered comparable circumstances have concluded that giving such credit is appropriate. Such a credit clause does not violate public policy because it is regarded as a lump-sum payment of child support, not a waiver of child support altogether. Further, the agreement still provides regular support for the children, because it is the custodial parent’s responsibility, being aware of the credit provision, to budget the payment accordingly.

Is Alan’s claim for credit against the 2006 child support award barred by res judicata? Kathleen argues that Alan should have asked for credit in the last modification proceeding, and not after the child support award was entered. Therefore, Kathleen asserted that his declaratory judgment action should be barred by res judicata.

     However, a Court noted that Alan’s claim for credit against his child support obligation was not before the court, expressly or implicitly, in the last modification proceeding. Rather, it had been conclusively settled in the March 14, 2000, modification, from which Kathleen did not appeal. Alan was entitled to rely on the provisions of that order, at least until it became clear that he and Kathleen disagreed about its effectiveness. There is nothing in the record to suggest that Alan knew, in the last modification proceeding, that it would be necessary to seek a declaratory judgment to enforce the provisions of the March 14 order. He was not required, in the later proceedings, to anticipate a collateral attack on the credit provision. Instead, Alan’s declaratory judgment action sought to establish, insofar as the $14,000 credit was concerned, that a portion of Alan’s liability for child support had already been discharged.

     While the 2006 child support award set a date upon which Alan’s obligation to pay child support would commence, that did not preclude the court from finding, pursuant to the March 14, 2000, order, that part of the March 7, 2006, award had already been satisfied by Alan’s $14,000 payment.

Conclusion: The credit provision here was not void as a conditional order or as against public policy. Alan’s declaratory judgment action to enforce the provision was not barred by res judicata. Therefore, Kathleen’s assignments of error lacked merit, and the Court affirmed the judgment of the district court. AFFIRMED.


Foreclosure, Bankruptcy, Notice of Discharge

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After a county treasurer issued tax sale certificates issued for delinquent taxes on real estate to the county, but before the county petitioned for foreclosure, the appellees here filed for chapter 13 bankruptcy, staying the county from enforcing its liens. Under 11 U.S.C. § 108(c) (2000), the county had 30 days after receiving notice of the bankruptcy dismissal to file its petition in foreclosure. The district court found that the county had failed to timely file its petitions for foreclosure. Examining the issue of when did the county receive notice of the bankruptcy dismissal, the Nebraska Supreme Court finds that notice to the county’s treasurer was reasonably calculated to apprise the county that the bankruptcy court had dismissed the appellee’s case and affirmed.

County of Hitchcock v. Barger, 275 Neb. 872 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

     a.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. An appellate court reviews questions of law independently of the lower court’s conclusion.

Actions:

1.  Foreclosure: Liens: Real Estate: Tax Sale: Time. Under Neb. rev. Stat. § 77-1902 (reissue 2003), an action to foreclose a lien for taxes represented by a tax sale certificate shall only be brought within 6 months after the expiration of 3 years from the date of sale of any real estate for taxes or special assessments.

Bankruptcy:

1.  Service of Process: Notice: Time. Neb. rev. Stat. § 25-510.02(2) (reissue 1995) is not relevant to whether a county is properly served with a bankruptcy dismissal notice for purposes of determining whether the 30-day period in 11 U.S.C. § 108(c)(2) (2000) is triggered.

2.  Notice: Time. When deciding whether purported notice of a bankruptcy dismissal is sufficient to trigger the 30-day time limit in 11 U.S.C. § 108(c)(2) (2000), a court should determine whether the notice was reasonably calculated to apprise the claimant that the stay terminated or expired.

Date Filed and Case No.: June 13, 2008. No. S-07-105.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/june/jun13/s07-105.pdf

Court Appealed From: District Court for Hitchcock County: David Urbom, Judge.

Attorneys for the Appeal: D. Eugene Garner for County of Hitchcock, Nebraska, a Political Subdivision of the State of Nebraska, appellant. George G. Vinton for William M. Barger and Randee L. Barger, appellees.

Supreme Court: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Not Participating in the Decision: Heavican, C.J.

Authored By: Connolly, J.

Summary: County of Hitchcock, Nebraska (the County), brought this action to foreclose two tax sale certificates issued for delinquent taxes on real estate owned by William M. Barger and Randee L. Barger. After the Hitchcock County treasurer issued the certificates to the County, but before the County petitioned for foreclosure, the Bargers filed for chapter 13 bankruptcy. Under 11 U.S.C. § 362(a) (2000), the County was automatically stayed from enforcing its liens when the Bargers filed their bankruptcy petition. Under 11 U.S.C. § 108(c) (2000), the County had 30 days after receiving notice of the bankruptcy dismissal to file its petition in foreclosure. The Bargers argued that the County failed to timely file its petition. The district court agreed and granted the Bargers’ motion for summary judgment. The County appealed.

When could the County file its petitions for foreclosure? The Nebraska Supreme Court noted that under Neb. Rev. Stat. § 77-1902 expresses the time limit an action to foreclose a lien for taxes represented by a tax sale certificate could be brought. Here, the treasurer timely issued separate certificates on both of the delinquent properties, but the Bargers’ filing for bankruptcy affected the time limits under the statute by triggering the automatic stay under 11 U.S.C. § 362(a). Under § 77-1902, the time for filing the foreclosure petition on one of the properties expired on January 27, during the automatic stay. The stay continued until the bankruptcy court dismissed the Bargers’ case on March 18, 2002. The time for filing the petition on the second property, expired on April 1, about 14 days after the stay terminated.

     The Bankruptcy code offers protection for claimants whose claims might expire during the pendency of a bankruptcy stay or before, or within a short time after, the claimant learns of the stay’s termination (11 U.S.C. § 108(c)). Here, January 27 and April 1 are the relevant dates for § 108(c)(1). Both dates occurred before the deadline described in § 108(c)(2), so the extension in § 108(c)(2) applies. Under § 108(c)(2), the County had 30 days following notice of the stay’s termination to file the foreclosure petition for the properties. Therefore, in deciding if the County’s petition was timely, the Court had to determine when the County received notice of the bankruptcy dismissal.

When the County received notice of the bankruptcy dismissal? To trigger the 30-day limit in § 108(c)(2), notice must be reasonably calculated to apprise the claimant that the stay has terminated or expired. Here, the County filed its foreclosure petition on July 15, 2002 so the issue is whether July 15 was within 30 days of the County’s receiving notice. The County contended that it did not receive notice of dismissal when the treasurer received notice because the treasurer was not the proper party to receive the notice relying on Neb. Rev. Stat. § 25-510.02(2) (reissue 1995) to argue that the proper party to receive notice was the Hitchcock County clerk or chief executive officer. The Court’s reading of the statute was that § 25-510.02(2) is relevant for determining how to serve a county when commencing an action involving the county as service of process. But here, the County was not served with notice of the bankruptcy dismissal for purposes of commencing an action involving the County. Therefore, § 25-510.02(2) is irrelevant.

     The County also argued that the County, acting by and through its board, was the “‘holder’” of the certificates and was the “‘creditor’” for purposes of the bankruptcy proceeding. Thus, according to the County, the board was the proper entity to receive notice of the bankruptcy dismissal.

     Here, the bankruptcy dismissal notice was pertinent to the County’s foreclosure actions: In effect, the notice announced the termination of the stay that had prevented the County from initiating the foreclosure of its tax sale certificates. We believe it is