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holding when appellate court judicially construes statute and construction does not evoke amendment, it is presumed Legislature acquiesced in court’s determination of Legislature’s intent
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No. S–12–139.
2012-12-21
Carolyn Jean SPADY, Appellee, v. Roger Paul SPADY, Appellant.
Kent A. Schroeder, Kearney, and Luke M. Simpson, of Ross, Schroeder & George, L.L.C., for appellant. Mitchel L. Greenwall, Kearney, of Greenwall, Bruner & Frank, L.L.C., for appellee.
Syllabus by the Court
1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed is reviewed for abuse of discretion.
2. Statutes. Statutory interpretation presents a question of law.
3. Appeal and Error. An appellate court resolves questions of law independently of the trial court.
4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
5. Contempt: Proof. Outside of statutory procedures imposing a different standard, it is the complainant's burden to prove civil contempt by clear and convincing evidence.
6. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.
7. Judgments: Jurisdiction. A ruling made in the absence of subject matter jurisdiction is a nullity.
8. Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter.
9. Judgments: Collateral Attack. Only a void judgment is subject to collateral attack.
10. Jurisdiction: Appeal and Error. Generally, once an appeal has been perfected, the trial court no longer has jurisdiction.
11. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.
12. Alimony: Statutes: Words and Phrases. The word “support” in Neb.Rev.Stat. § 42–351(2) (Reissue 2008) includes spousal support, i.e., alimony.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Kent A. Schroeder, Kearney, and Luke M. Simpson, of Ross, Schroeder & George, L.L.C., for appellant. Mitchel L. Greenwall, Kearney, of Greenwall, Bruner & Frank, L.L.C., for appellee.
HEAVICAN, C.J., WRIGHT, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.
MILLER–LERMAN, J.
NATURE OF CASE
This case involves the appeal from an order of contempt stemming from a dissolution of marriage proceeding. Roger Paul Spady (Paul) appeals the order of the district court for Adams County in which the court found Paul to be in contempt for failing to obey the court's order to pay temporary alimony and for failing to appear at the contempt hearing. Paul argues that the court did not have jurisdiction to order him to pay temporary alimony when an appeal of the decree of dissolution was pending. Paul contends that the temporary alimony order is void and that he cannot be properly found to be in violation of such order. He also asserts that his failure to appear at the contempt hearing was due to his doctor's order that he should not travel while recovering from major surgery and that the district court erred when it found him in contempt on the basis that he failed to appear for the hearing. Because the district court had jurisdiction to issue the temporary alimony order, it is not void. Thus, Paul is subject to contempt for violating the order to pay temporary alimony, and the finding of contempt was not error. As explained below, it is not necessary for us to review the finding of contempt for failure to appear. We affirm.
STATEMENT OF FACTS
Paul and Carolyn Jean Spady were married in 1966. Carolyn filed for dissolution of the marriage in 2004. The parties' children had reached the age of majority, and so the issues for trial generally involved valuation and division of the marital estate. On January 25, 2006, while dissolution proceedings were pending, the district court entered an order requiring Paul to pay temporary alimony for the benefit of Carolyn in the amount of $13,500 per month commencing January 1, 2006, and “every month thereafter during the pendency of this action.”
After a trial and various other proceedings, the court on January 20, 2011, entered a decree dissolving the marriage and dividing the marital estate. In the decree of dissolution, the court stated the following with regard to alimony:
[Paul] shall pay alimony to [Carolyn] in the amount of one dollar per year starting on the first month after this Decree becomes final and be due each year for five years. Alimony shall terminate upon the death of either party or remarriage of [Carolyn] or payment in full of the Judgment on behalf of [Carolyn]. The temporary alimony shall remain in effect until this Decree becomes final.
Paul filed a motion to alter or amend the decree. The court overruled the motion. Paul timely filed a notice of appeal on April 1, 2011. That case became a previous appeal, case No. A–11–271, before the Nebraska Court of Appeals.
On May 17, 2011, the district court ordered that Paul post a supersedeas bond in a designated amount effective July 7, 2011. No bond was posted.
On June 7, 2011, while the appeal was pending before the Court of Appeals but before the parties filed their appellate briefs, Carolyn filed a motion asking the district court to award her temporary alimony pending the appeal. In her motion, Carolyn asserted that Paul had not paid alimony as directed in the decree.
On June 22, 2011, Paul filed his appellate brief in case No. A–11–271. Paul assigned errors relating to the division of property in the decree. Notwithstanding the provision of alimony in Carolyn's favor in the decree and the dispute regarding alimony as evidenced by Carolyn's motion filed June 7, Paul did not assign error regarding alimony. Paul also did not assign error regarding the bond. Carolyn filed her appellee brief in case No. A–11–271 on August 3, and Paul was granted leave to exceed page limitations and filed his reply brief on August 17.
During the pendency of the appeal, the district court took up Carolyn's motion and filed an order on June 28, 2011, which awarded Carolyn temporary alimony. It is the violation of this order which gives rise to the contempt order which is the subject of the instant appeal. In its June 28 order, the district court referred to the portion of the decree of dissolution quoted above regarding temporary alimony and said that it had included the temporary alimony provision in favor of Carolyn because Paul had control of all the income producing property and would continue to have control during the period of appeal. The court stated that the decree had not become final and that temporary alimony of $13,500 per month remained in effect until there was a final order from the Court of Appeals. However, the court went on to note that Carolyn had new sources of income totaling $1,376 per month that were not previously available; the court found that appropriate temporary alimony during the appeal period would be $12,124 per month, representing the previously ordered monthly alimony less Carolyn's new sources of monthly income. The court therefore ordered Paul to pay Carolyn temporary alimony in the amount of $12,124 per month effective July 1, 2011. Neither party appealed the June 28 order.
The appeal of the decree of dissolution in case No. A–11–271 was submitted to the Court of Appeals. In its opinion, the Court of Appeals considered the issues which had been raised by Paul in his assignments of error. Those matters were limited to property issues. The Court of Appeals affirmed the challenged property division matters contained in the decree of dissolution in a memorandum opinion filed February 14, 2012. See Spady v. Spady, No. A–11–271, 2012 WL 502702 (Neb.App. Feb. 14, 2012) (selected for posting to court Web site). A petition for further review was denied by the Nebraska Supreme Court on May 16, 2012, thus concluding the appeal in case No. A–11–271.
During the pendency of the appeal in case No. A–11–271, on October 5, 2011, Carolyn filed in the district court a motion for an order for Paul to show cause why he should not be held in contempt for violating the temporary alimony orders of that court. She alleged that since December 29, 2010, Paul had paid only $1 toward the ordered temporary support. She asserted that by virtue of the initial temporary alimonyaward which was embodied in the January 2011 decree, unpaid temporary alimony had continued to accrue at the rate of $13,500 per month from January 1 through July 1, 2011. She further asserted that by virtue of the June 28, 2011, order, unpaid temporary alimony had accrued at the rate of $12,124 per month from July 1 through the date of her filing. Carolyn alleged that Paul owed her $129,495 in unpaid temporary alimony plus interest, less the $1 he had paid.
On October 6, 2011, the court entered an order that Paul should appear before the court on December 13 to show cause why he should not be held in contempt for his failure to obey the court's orders. A summons and the order to show cause were personally served on Paul in Nebraska on October 7.
Paul did not personally appear at the December 13, 2011, contempt hearing. Counsel appeared on Paul's behalf. With respect to his failure to appear, Paul's counsel stated that Paul was recovering from surgery and that Paul intended to remain in Phoenix, Arizona, until his physician told him he could travel. Paul's counsel offered into evidence an unsworn note written on a prescription tablet page signed by a doctor at a hospital in Phoenix stating that Paul was “immunocompromised” and should limit travel if possible. The note was dated November 1, 2011, which was 3 weeks after Paul was served contempt related pleadings and approximately 6 weeks before the contempt hearing.
With regard to temporary alimony, Paul's counsel referred to the decree of dissolution which provided that temporary alimony was to end when the decree became final and that Paul would then be required to pay alimony of only $1 per year. Counsel explained Paul's failure to pay alimony based on Paul's argument that the decree of January 20, 2011, became final 30 days after it was entered. Counsel apparently relied on Neb.Rev.Stat. § 42–372.01 (Reissue 2008), which states, in part, that except for purposes of appeal, remarriage, and continuation of health insurance coverage, a decree dissolving a marriage becomes final and operative 30 days after it is entered. Counsel for Paul argued that 30 days after entry of the decree, temporary alimony was no longer due under the decree.
At the contempt hearing, Paul also contended that the district court had not had jurisdiction to enter the June 28, 2011, order regarding temporary alimony, the contempt of which was before the court. Paul's counsel specifically asserted that while the decree was on appeal, the district court lacked jurisdiction. Counsel for Paul contended that Paul had complied with the court's operative order in the decree regarding alimony when he paid $1.
In an order entered January 27, 2012, the district court rejected Paul's explanations as to why he should not be held in contempt. This order gives rise to the instant appeal. The court noted that although its intent in the decree was to provide Carolyn with continued temporary alimony pending an appeal, it was concerned that its use of the language “ ‘Until this Decree becomes final’ ” could plausibly be viewed as though temporary alimony ended 30 days after the decree was entered. The court stated that in the decree, it had intended by its language that it had ordered temporary alimony to continue until completion of the appeal; however, out of caution, it did not include amounts accrued from January to June 2011 in its analysis in the contempt proceeding or in its arrearage calculation.
In its contempt order of January 27, 2012, the court determined that on June 28, 2011, it had had concurrent jurisdiction under Neb.Rev.Stat. § 42–351(2) (Reissue 2008), while the decree was on appeal, to enter orders regarding spousal support and that therefore, its June 28 order awarding temporary alimony of $12,124 per month starting July 1 was valid. The court further noted that Paul had not filed a supersedeas bond and that therefore the court retained jurisdiction to enforce the terms of its judgment. The court determined that as of the December 13 hearing, Paul was in arrears on 5 months' worth of the temporary alimony that had been ordered in the June 28 order. Because of the plausibility of a mistaken understanding of the terms of the decree, the district court did not find Paul in contempt for the period of January to June 2011. However, it did find Paul in contempt for failure to pay temporary alimony after the issue was addressed in the June 28 order.
The court concluded in the January 27, 2012, order that Paul was in contempt of the court because he had failed to pay temporary support as ordered on June 28, 2011, and because he had failed to appear for the December 13 hearing. The court issued a bench warrant for Paul's arrest that was enforceable only in the State of Nebraska and ordered that if Paul was arrested on the bench warrant, he could purge his contempt and be released from custody by paying all alimony that was past due from July 1 through the date of arrest.
Paul appeals the January 27, 2012, order finding him in contempt.
ASSIGNMENTS OF ERROR
Paul claims generally that the district court erred when it found him to be in contempt. He asserts that because the court did not have jurisdiction to order him to pay temporary alimony in June 2011 while the appeal of the decree of dissolution was pending, the order of June 28, 2011, was void, and that he was not required to obey such order. He also asserts that because he was recovering from surgery, his failure to appear at the contempt hearing should have been excused.
STANDARDS OF REVIEW
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed is reviewed for abuse of discretion. Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
Statutory interpretation presents a question of law. Downey v. Western Comm. College Area, 282 Neb. 970, 808 N.W.2d 839 (2012). An appellate court resolves questions of law independently of the trial court. Id.
Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 N.W.2d 492 (2011).
ANALYSIS
In its contempt order filed January 27, 2012, now on appeal, the district court determined that under § 42–351(2), it had jurisdiction to issue its order of June 28, 2011, awarding Carolyn temporary alimony of $12,124 per month, notwithstanding the pendency of Paul's appeal from the decree. The district court declined to find Paul in contempt for the period of January to June 2011, because of the plausibility of Paul's explanation. However, by his willful failure to pay alimony as ordered on June 28, 2011, the district court found Paul in contempt. The district court also found Paul in contempt for failing to appear at the contempt hearing. Paul challenges the contempt order. We find no merit to Paul's assignments of error.
We apply the standard of review taken from Hossaini recited above. We also stated in Hossaini that “[o]utside of statutory procedures imposing a different standard, it is the complainant's burden to prove civil contempt by clear and convincing evidence.” 283 Neb. at 376, 808 N.W.2d at 873.
Temporary Alimony: The District Court's Jurisdiction Is Properly Subject to Challenge.
As an initial matter, we note that Paul's challenge to the June 28, 2011, order of which he was found in contempt is properly limited to the authority of the district court to have issued the temporary alimony order while his appeal from the decree was pending. That is, Paul's challenge before us is limited to whether the district court had jurisdiction to issue the June 28 order. He made this jurisdictional argument at the contempt hearing. While Paul cannot collaterally attack the amount of temporary alimony, the court's jurisdiction to enter the temporary alimony order was subject to challenge in the contempt proceeding.
We have stated that subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758 (2005). A ruling made in the absence of subject matter jurisdiction is a nullity. Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001).
We have also stated:
Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). Only a void judgment is subject to collateral attack. Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985).
State v. Keen, 272 Neb. 123, 130, 718 N.W.2d 494, 500 (2006). See, also, Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011); In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Ramon N., 18 Neb.App. 574, 789 N.W.2d 272 (2010). We have applied these principles in dissolution of marriage actions. See Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999) (cases collected).
Although Paul makes mention of the $12,124 monthly amount in his brief, we do not read Paul's brief as challenging the propriety of the $12,124–per–month temporary alimony award ordered on June 28, 2011. Furthermore, any such challenge to the propriety of the amount of temporary alimony in the June 28 order would be an impermissible collateral attack.
In this dissolution of marriage action, the record shows that notwithstanding the award of temporary alimony in the decree and the dispute evidenced by Carolyn's motion for temporary alimony due to Paul's failure to pay filed before Paul's appellate brief was filed in the Court of Appeals, Paul limited his assignments of error in case No. A–11–271 to issues of property division. Although postdecree matters may be considered on appeal when raised in assigned errors, postdecree matterswere not before the Court of Appeals in case No. A–11–271. See Kricsfeld v. Kricsfeld, 8 Neb.App. 1, 588 N.W.2d 210 (1999). The award of temporary alimony was not challenged in case No. A–11–271, and the award could not thereafter be collaterally attacked in this contempt proceeding. See Jessen v. Jessen, 259 Neb. 644, 611 N.W.2d 834 (2000).
The record further shows that Paul did not post a supersedeas bond or assign error related to the bond order. The district court was not denied jurisdiction to enforce the terms of the judgment occasioned by the posting of a bond. See Kula v. Kula, 180 Neb. 893, 146 N.W.2d 384 (1966).
For the several reasons recited above, we do not review the propriety of the $12,124 amount of monthly temporary alimony in the June 28, 2011, order. However, Paul's challenge to the district court's jurisdiction to enter such order was properly raised in this contempt proceeding.
Temporary Alimony: The District Court Retained Jurisdiction to Enter the June 28, 2011, Order, and the District Court's Finding and Corresponding Contempt Order Are Not in Error.
During the contempt proceeding, the parties and the district court acknowledged that generally, once an appeal has been perfected, the trial court no longer has jurisdiction. See Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009). However, the order of contempt refers to § 42–351(2) as the specific statutory authority forming an exception to the rule and providing the basis for the jurisdictional authority pursuant to which the district court properly awarded temporary alimony during the pendency of the appeal in case No. A–11–271. We agree that the district court had jurisdiction under this and related statutes to order temporary alimony on June 28, 2011.
Section 42–351 provides:
(1) In proceedings under sections 42–347 to 42–381, the court shall have jurisdiction to inquire into such matters, make such investigations, and render such judgments and make such orders, both temporary and final, as are appropriate concerning the status of the marriage, the custody and support of minor children, the support of either party, the settlement of the property rights of the parties, and the award of costs and attorney's fees. The court shall determine jurisdiction for child custody proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act.
(2) When final orders relating to proceedings governed by sections 42–347 to 42–381 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, parenting time, visitation, or other access, orders shown to be necessary to allow the use of property or to prevent the irreparable harm to or loss of property during the pendency of such appeal, or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal.
Paul focuses on § 42–351(2), which provides for the retention of jurisdiction for certain matters in the trial court “during the pendency of [an] appeal.” He contends that the word “support” as used in the phrase “retain jurisdiction to provide for such orders regarding support, custody, parenting time, visitation, or other access” in § 42–351(2) is limited to the retention of matters of child support. He asserts that “support” in § 42–351(2) cannot refer to alimony and that the district court did not retain jurisdiction. We disagree.
We accord § 42–351 a plain reading. See American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 N.W.2d 492 (2011) (statutory language is to be given its plain and ordinary meaning). The word “support” in § 42–351(2) is not by its terms limited to child support. Further, we look to the immediately preceding provision, § 42–351(1), which refers to “support of minor children [and] the support of either party.” Section 42–351(1) shows that the word “support” is used statutorily in § 42–351 to refer to child support and spousal support, i.e., alimony.
Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. Traveler's Indem. Co. v. Gridiron Mgmt. Group, 281 Neb. 113, 794 N.W.2d 143 (2011). In so doing we see that elsewhere in the domestic relations statutes, the definition of “[s]upport order” in the definitional statute, § 42–347(11), refers us to Neb.Rev.Stat. § 43–1717 (Cum.Supp.2012), which in turn defines “[s]upport order” as including “spousal” support. We conclude the word “support” in § 42–351(2) includes spousal support, i.e., alimony, and the district court retained jurisdiction regarding temporary alimony. We therefore reject Paul's argument that the district court lacked jurisdiction under § 42–351(2) when it entered its order of temporary alimony on June 28, 2011, while the decree was on appeal.
Our conclusion is consistent with the cases which have long used the word “support” when referring to temporary alimony. See, e.g., Overton v. Overton, 178 Neb. 267, 133 N.W.2d 7 (1965). Our analysis and the district court's continuation of “temporary alimony” during the appeal are also consistent with the historical jurisprudence surrounding the manner by which an alimony award can be accepted pending appeal without losing the potential to challenge the adequacy of the amount on appeal. See Larabee v. Larabee, 128 Neb. 560, 259 N.W. 520 (1935) (stating that one who voluntarily accepts payment of part of judgment in his or her favor loses right to prosecute appeal). But see Reynek v. Reynek, 193 Neb. 404, 227 N.W.2d 578 (1975) (concluding that acceptance of property settlement did not forfeit right to appeal child custody).
In this regard, we stated in Berigan v. Berigan, 194 Neb. 185, 187, 231 N.W.2d 131, 133 (1975), that
[t]he proper procedure where an appeal is contemplated is to apply to the trial court for temporary allowances pending appeal. If the trial court has fully adjusted the property rights of the parties, the court may make the temporary allowances during the pendency of the appeal applicable on the alimony awarded in the decree.
By making the alimony award “temporary” pending appeal, the recipient is not at risk of losing the opportunity to challenge the award. Id.
The district court's order of June 28, 2011, followed the practice of awarding “temporary alimony” pending appeal and was both authorized statutorily and consistent with our jurisprudence. The district court had jurisdiction to issue the June 28 order, and it is not void. Paul's failure to pay temporary alimony to Carolyn in violation of the June 28 order was subject to contempt, and the evidence at the contempt proceeding established Paul's contempt by clear and convincing evidence. We reject Paul's assignment of error wherein he claimed that he was not in contempt for failure to pay temporary alimony. The finding and order of contempt on the basis that Paul failed to pay temporary alimony were not error.
Failure to Appear: We Need Not Consider Whether the Finding of Contempt Based on Failure to Appear Was Correct.
Paul also challenges the district court's determination that his failure to appear justified a finding of contempt. Following its findings of contempt, the district court issued the bench warrant. The district court ordered that Paul could purge his contempt and be released from custody by paying all alimony that was past due through the date of his arrest. The terms of the order corresponded solely to Paul's failure to pay temporary alimony. There was no separate punishment or sanction imposed due to Paul's failure to appear. Because there is no order attributable to the failure to appear for us to review, we decline to analyze the correctness of the district court's finding of contempt based on a failure to appear. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398 (2011).
CONCLUSION
The district court found Paul in contempt based on his failure to pay temporary alimony. Such finding supported the contempt order which provided that Paul could purge his contempt by paying past-due temporary alimony. We need not separately consider whether the court properly found Paul in contempt for his failure to appear at the contempt hearing. For the reasons recited above, we find no error by the district court in its finding that Paul was in contempt based on his failure to pay temporary alimony and its corresponding order. Accordingly, we affirm.
Affirmed.