|
|
|
Postjudgment Proceedings Concerning Jurisdiction Issues
© 2003 National Legal Research Group, Inc.
NEBRASKA: Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003).
The trial court erred by holding that it lacked jurisdiction over a motion for a money judgment equal to the amount of marital debt assigned to the wife, but paid by the husband. The court likewise erred by holding that it lacked jurisdiction over a motion for a money judgment equal to the amount of personal property assigned to the husband, but retained improperly by the wife. Both motions asked the court only to enforce the decree, not to improperly modify its substantive provisions. Where both parties owed sums to each other for failing to follow the court's property division order, and the wife owed back child support to the husband, the amounts owed were properly offset.
The parties were divorced in 1993. The divorce decree ordered a division of numerous items of personal property between the parties as well as an equal division of several marital debts. The wife was also ordered to pay child support to the husband. The decree further ordered that upon the husband's retirement from the military, the wife was to receive 27.5% of his monthly retirement benefits.
In 2001, after the husband's retirement, the husband filed an application to determine the amounts due pursuant to the 1993 divorce decree and to enforce the decree by setoff. He alleged that the wife had failed to pay her portion of the marital debts, thereby requiring him to do so. In addition, he asserted that the wife had not made the court-ordered child support payments and had failed to give him certain items of personal property as ordered.
Husband admitted receiving $18,000 in retirement benefits to which the wife was entitled, but sought to offset that amount by the $6,300 in unpaid child support. The trial court concluded that the application filed by the husband was an attempt to modify the 1993 decree by ordering the wife to reimburse the husband for her share of the unpaid marital debts and by ordering her to pay an amount representing the value of the personal property awarded to the husband. As such, the trial court concluded that it was without jurisdiction over these counts because a final decree of divorce making a division of marital property is final and not subject to modification. The husband appealed. The Nebraska Supreme Court reversed the trial court's determination.
The high court first noted that a property division in a dissolution of marriage decree from which no appeal is taken is not subject to modification, and ordinarily will not thereafter be vacated or modified as to such property division in the absence of fraud or gross inequity. However, an effort to enforce a decree is not treated the same as an attempt to modify one. In such an instance, a court that has jurisdiction to make a decision also has the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect. Looking to the relief sought by the husband an order that the wife pay him a share of the marital debts as required by the judgment decree the court concluded that the relief sought in the application was an attempt to enforce the precise obligation imposed on the wife by the decree. That decree had provided that all the debts were marital debts and that each party should pay 50% of those debts. The trial court thus had the requisite jurisdiction to decide this count of the husband's application for relief.
The court next addressed the husband's application for an order that the wife pay him the value of the personal property that had been awarded to him in the original judgment decree. The wife argued that the relief sought was similarly an attempt to modify the decree. The court disagreed. The husband had presented irrefutable evidence that the wife had converted to her use the personal property awarded to the husband in the decree. The husband's request that he be awarded the value of that property was an enforcement of the divorce decree, and the trial court had jurisdiction over this count of the husband's application for relief.
Finally, the court considered the husband's retirement benefits. The decree had ordered that 27.5% of the husband's military retirement benefits be awarded to the wife. When he filed his application for relief, the husband admitted that he had received approximately $18,000 in benefits that belonged to the wife. The trial court offset that amount by the approximately $6,000 in child support debt. The husband sought a further offset for the amounts owed to him as a result of the wife's failure to pay her portion of the marital debts and for the value of the personal property withheld by the wife. The court agreed, as, again, such relief would not be a modification but, rather, an enforcement of the original decree. The court did decline, however, to modify the decree to change the payee from the clerk of the court to the husband, as the husband requested.
Go to: Postdecree Proceedings Category
Go to: Cases of Interest by Category
Go to: Previous Page
| Featured Services | |
|
| The Research Center: (Divorce Cases of Interest) | Research Home | ||||
Find Case Law, Case Analysis, and Divorce Information...
| |||||
Copyright© 1996-2009. All rights reserved by Divorce Source, Inc.
Comments & Suggestions? or Recommend This Page to a Friend!