In this dissolution case, the Nebraska Court of Appeals finds that a premarital agreement was voluntarily entered into and is enforceable, but that the district court erred in not enforcing all of its provisions. Otherwise, the Court affirms the district court’s findings in the decree.
Edwards v. Edwards, 16 Neb. App. 297 (2008)
Court of Appeals Headnotes
Appeal and Error:
1. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.
2. Waiver. Whether a party waived his or her right to appellate review is a question of law.
Divorce:
1. Child Custody: When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests.
a. Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. An appellate court’s review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees.
2. Judgments: Waiver: Appeal and Error. A spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse’s right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review.
3. Attorney Fees: Appeal and Error. In an action for dissolution of marriage, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.
Judges:
1. Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
Evidence.
1. Appeal and Error. When the evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
Judgments:
1. Waiver: Appeal and Error. As a general rule, a party who accepts the benefits of a decree waives the right to prosecute an appeal from it.
2. Appeal and Error. An appellate court decides a question of law independently of the conclusion reached by the trial court.
3. Records: Appeal and Error. It is the appellant’s duty to present and show by the record that the judgment is erroneous.
Antenuptial Agreements.
1. Nebraska’s Uniform Premarital Agreement Act authorizes parties contemplating marriage to contract with respect to matters, not in violation of public policy or in violation of statutes imposing criminal penalties, including the rights and obligations of each party in any property of the other, the disposition of property upon divorce, and the modification or elimination of spousal support. ••• A premarital agreement is not enforceable if the party against whom enforcement is sought proves that party did not execute the agreement voluntarily. ••• The issue of unconscionability of a premarital agreement is a question of law.
Proof.
1. The party opposing enforcement of a premarital agreement has the burden of proving that the agreement is not enforceable.
2. Evidence. evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the invol-untariness of a premarital agreement.
3. Alimony. Neb. rev. stat. § 42-1004(1)(d) (reissue 2004) applies to both permanent and temporary spousal support.
Contracts:
1. Intent. Whether a contract is entire or several is a question of intentions apparent in the instrument.
Statutes.
1. The meaning of a statute is a question of law. ••• Absent anything to the contrary, statutory language is to be given its plain and ordinary meaning. ••• To the extent that there is conflict between two statutes on the same subject, the specific statute controls over the general statute.
Supersedeas Bonds:
1. Appeal and Error. An appellate court will not modify a district court’s order setting the amount of a supersedeas bond unless it finds the district court abused its discretion. ••• The exercise by the trial court of its discretion with respect to fixing the terms and conditions of a supersedeas bond will not be interfered with on appeal unless there has been a manifest abuse of discretion or injustice has resulted.
Child Custody:
1. When both parents are found to be fit, the inquiry for the court is the best interests of the child.
2. Appeal and Error. In contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court’s determination is affirmed or reversed on appeal.
Date Filed and Case No.: January 15, 2008. No. A-06-1350.
Court Appealed From: District Court for Douglas County: Gary B. Randall, Judge.
Attorneys for the Appeal: Mark J. Milone for Dianna Y. Edwards, appellant and cross-appellee. P. Shawn McCann for Jeffrey L. Edwards, appellee and cross-appellant.
Judges: Severs, Carlson, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: Jeffrey l. Edwards and Dianna Y. Edwards met in 1994. At the time of their meeting, Dianna was a registered nurse employed by the University of Nebraska Medical Center who began working for Jeffrey while continuing her employment. In 1995, she earned her bachelor of science degree in nursing. In 1994, Jeffrey was a physician and the sole shareholder and practitioner of a professional corporation he formed in 1993. He also had additional business interests (a winery and several assisted living facilities.) Three months after they met, Dianna moved into Jeffrey’s residence (a house he purchased in 1990.) They married in June 1996 after they had executed a premarital agreement. The parties disputed as to whether Dianna had been represented in drafting the agreement. The parties’ marriage produced two children. On February 12, 2003, Jeffrey petitioned for dissolution of the marriage seeking custody of the children. Dianna filed a cross-petition seeking custody of the children, spousal support, and exclusive possession of the marital residence. On June 5, the district court issued a temporary order awarding Dianna custody of the children, child support, exclusive possession of the family residence, and alimony. A 5-day trial commenced and both parties testified and called witnesses to testify regarding their parenting abilities. The court entered a decree dissolving the parties’ marriage finding that both Jeffrey and Dianna are “fit and proper persons to be awarded the custody of the minor children,” but that the best interests of the children would be served by awarding custody to Dianna subject to Jeffrey’s reasonable rights of visitation. The court found the premarital agreement valid and enforced it in its entirety, with the exception of a subparagraph which limited temporary spousal support. Pursuant to the terms of the premarital agreement, the court awarded Dianna alimony in the sum of $1,000 per month for a period of 15 months, as well as a lump-sum payment of $35,000. The court awarded Jeffrey the marital residence. The court ordered Jeffrey to pay $12,500 of Dianna’s attorney fees. Dianna filed a motion to alter or amend judgment which the district court did not announce a decision on upon but Dianna appealed. The Nebraska Court of Appeals dismissed Dianna’s appeal for lack of jurisdiction, finding it premature because the district court had not rendered a decision on her motion to alter or amend judgment. Upon remand, the district court entered an order overruling Dianna’s motion to alter or amend judgment and Dianna appealed. Jeffrey cross-appealed.
Did Dianna waive her right to appeal? Jeff argued that Dianna waived her right to appeal by accepting alimony payments after entry of the decree. The parties had established an automatic payment system whereby funds to satisfy Jeffrey’s temporary spousal support obligation were automatically transferred from Jeffrey to Dianna. Automatic payments continued after entry of the decree. Dianna attempted to avoid acceptance of these payments. The Court said that as a general rule, a party who accepts the benefits of a decree waives the right to prosecute an appeal from it. However, one notable exception to the acceptance of benefits rule was recognized by the Nebraska Supreme Court in Kassebaum v. Kassebaum, 178 Neb. 812, 135 N.W2d 704 (1965). In Liming v. Liming, 272 Neb. 534, 544-45, 723 N.W.2d 89, 97 (2006), the Nebraska supreme Court further developed the exception regarding a spouse who accepts the benefits of a divorce judgment under circumstances where the spouse’s right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review. Here, the Court found that this case falls within the exception set forth in Liming.
Was the premarital agreement enforceable? Dianna contended that the factors set forth in Neb. Rev. Stat. § 42-1006(1) are present in this case and that therefore, the premarital agreement is unenforceable. Reviewing how other jurisdictions have defined “voluntary” the Court said adopted a California definition:
[T]he party seeking to avoid a premarital agreement may prevail by establishing that the agreement was involuntary, and that evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the involuntariness of the agreement.
Reviewing Dianna’s arguments and the record, the Court found that Dianna voluntarily signed the agreement. Regarding Dianna’s argument that the agreement was unconscionable when it was executed (Neb. Rev. Stat. § 42-1006(3)) the Court found that “Dianna’s argument is illogical and unsupported by law.” Here, the provision deemed unconscionable by the district court was severable from the other provisions of the agreement. Because the Court concluded that the agreement was not unconscionable when it was executed, they said it was unnecessary to discuss whether Dianna was provided fair and reasonable disclosure of Jeffrey’s assets, as this factor alone is not sufficient to make the agreement unenforceable. (see § 42-1006(1)(b))
Did the district court err in failing to enforce the subparagraph which limited temporary spousal support? Here, the district court determined that the premarital agreement is valid and enforceable, with the exception of a subparagraph limiting spousal support. The district court found that the subparagraph “violates the intent and purpose of statutory provisions regarding an award of temporary support in a dissolution matter.” The court further found that enforcement of this provision would be inequitable and unconscionable. The resolution of this assignment turns upon the interplay between § 42-1004(1) and Neb. Rev. Stat. § 42-357. Section 42-1004(1)(d) grants parties the right to contract with respect to the modification or elimination of spousal support and does not limit its reach to only permanent spousal support. “If it was the intent of the legislature to allow parties to eliminate only permanent spousal support, it could have easily included a modifier in the statute.” Because the legislature did not do this, the Court recognized that § 42-1004(1)(d) applies to both permanent and temporary spousal support. However, they agreed with Jeffrey that the district court erred in holding that the subparagraph violated the intent and purpose of statutory provisions regarding an award of temporary support in a dissolution matter. While § 42-357 allows the court to enter an order for temporary support of a spouse and § 42-1004(1)(d) allows the parties to contractually eliminate spousal support, § 42-357 also empowers the district court to require a party to pay sums of money to enable the other party to prosecute or defend against the action. As such Nebraska’s Premarital Agreement Act does not allow parties to contract away the court’s authority to require such payments as despite the existence of a premarital agreement limiting the amount or duration of temporary spousal support, a trial court retains the ability to order payment of moneys necessary to enable the party to maintain or defend against the action. The district court made no finding that temporary payments beyond those specified in the premarital agreement were necessary to allow Dianna to defend against the action. As the rule giving preference to a specific statute over a general statute resolves the conflict, the Court ruled that § 42-1004(1)(d) is the more specific statute. The held that the subparagraph is valid under § 42-1004(1)(d) and therefore modified the district court’s decree on this issue.
Did the district court err in overruling Jeffrey's motion for temporary relief, a supersedeas bond, awarding Dianna attorney fees, and warding her custody of the parties' minor children? Regarding these assignments of error in Jeffrey’s cross- appeal, the Court found that the district court did not abuse its discretion in setting the supersedeas bond, Upon its de novo review of the record, they found no abuse of discretion in the district court’s award of attorney fees and that the district court did not abuse its discretion in awarding custody of the minor children to Dianna.
Conclusion: The Nebraska Court of Appeals here concludes that the district court correctly found that the majority of the premarital agreement was valid and enforceable, but erred in finding that the provision limiting temporary support was unenforceable. They also concluded that the district court did not abuse its discretion in dividing the marital estate, denying Jeffrey’s motion for temporary relief, setting the supersedeas bond, awarding Dianna attorney fees, and granting Dianna custody of the parties’ minor children. AFFIRMED AS MODIFIED.
Premarital Agreement, Contract, Severability of Agreements Therein
In this dissolution case, the Nebraska Court of Appeals finds that a premarital agreement was voluntarily entered into and is enforceable, but that the district court erred in not enforcing all of its provisions. Otherwise, the Court affirms the district court’s findings in the decree.
Edwards v. Edwards, 16 Neb. App. 297 (2008)
Court of Appeals Headnotes
Appeal and Error:
1. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.
2. Waiver. Whether a party waived his or her right to appellate review is a question of law.
Divorce:
1. Child Custody: When custody of a minor child is an issue in a proceeding to dissolve the marriage of the child’s parents, child custody is determined by parental fitness and the child’s best interests.
a. Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. An appellate court’s review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees.
2. Judgments: Waiver: Appeal and Error. A spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse’s right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review.
3. Attorney Fees: Appeal and Error. In an action for dissolution of marriage, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.
Judges:
1. Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
Evidence.
1. Appeal and Error. When the evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
Judgments:
1. Waiver: Appeal and Error. As a general rule, a party who accepts the benefits of a decree waives the right to prosecute an appeal from it.
2. Appeal and Error. An appellate court decides a question of law independently of the conclusion reached by the trial court.
3. Records: Appeal and Error. It is the appellant’s duty to present and show by the record that the judgment is erroneous.
Antenuptial Agreements.
1. Nebraska’s Uniform Premarital Agreement Act authorizes parties contemplating marriage to contract with respect to matters, not in violation of public policy or in violation of statutes imposing criminal penalties, including the rights and obligations of each party in any property of the other, the disposition of property upon divorce, and the modification or elimination of spousal support. ••• A premarital agreement is not enforceable if the party against whom enforcement is sought proves that party did not execute the agreement voluntarily. ••• The issue of unconscionability of a premarital agreement is a question of law.
Proof.
1. The party opposing enforcement of a premarital agreement has the burden of proving that the agreement is not enforceable.
2. Evidence. evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the invol-untariness of a premarital agreement.
3. Alimony. Neb. rev. stat. § 42-1004(1)(d) (reissue 2004) applies to both permanent and temporary spousal support.
Contracts:
1. Intent. Whether a contract is entire or several is a question of intentions apparent in the instrument.
Statutes.
1. The meaning of a statute is a question of law. ••• Absent anything to the contrary, statutory language is to be given its plain and ordinary meaning. ••• To the extent that there is conflict between two statutes on the same subject, the specific statute controls over the general statute.
Supersedeas Bonds:
1. Appeal and Error. An appellate court will not modify a district court’s order setting the amount of a supersedeas bond unless it finds the district court abused its discretion. ••• The exercise by the trial court of its discretion with respect to fixing the terms and conditions of a supersedeas bond will not be interfered with on appeal unless there has been a manifest abuse of discretion or injustice has resulted.
Child Custody:
1. When both parents are found to be fit, the inquiry for the court is the best interests of the child.
2. Appeal and Error. In contested custody cases, where material issues of fact are in great dispute, the standard of review and the amount of deference granted to the trial judge, who heard and observed the witnesses testify, are often dispositive of whether the trial court’s determination is affirmed or reversed on appeal.
Date Filed and Case No.: January 15, 2008. No. A-06-1350.
Court Appealed From: District Court for Douglas County: Gary B. Randall, Judge.
Attorneys for the Appeal: Mark J. Milone for Dianna Y. Edwards, appellant and cross-appellee. P. Shawn McCann for Jeffrey L. Edwards, appellee and cross-appellant.
Judges: Severs, Carlson, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: Jeffrey l. Edwards and Dianna Y. Edwards met in 1994. At the time of their meeting, Dianna was a registered nurse employed by the University of Nebraska Medical Center who began working for Jeffrey while continuing her employment. In 1995, she earned her bachelor of science degree in nursing. In 1994, Jeffrey was a physician and the sole shareholder and practitioner of a professional corporation he formed in 1993. He also had additional business interests (a winery and several assisted living facilities.) Three months after they met, Dianna moved into Jeffrey’s residence (a house he purchased in 1990.) They married in June 1996 after they had executed a premarital agreement. The parties disputed as to whether Dianna had been represented in drafting the agreement. The parties’ marriage produced two children. On February 12, 2003, Jeffrey petitioned for dissolution of the marriage seeking custody of the children. Dianna filed a cross-petition seeking custody of the children, spousal support, and exclusive possession of the marital residence. On June 5, the district court issued a temporary order awarding Dianna custody of the children, child support, exclusive possession of the family residence, and alimony. A 5-day trial commenced and both parties testified and called witnesses to testify regarding their parenting abilities. The court entered a decree dissolving the parties’ marriage finding that both Jeffrey and Dianna are “fit and proper persons to be awarded the custody of the minor children,” but that the best interests of the children would be served by awarding custody to Dianna subject to Jeffrey’s reasonable rights of visitation. The court found the premarital agreement valid and enforced it in its entirety, with the exception of a subparagraph which limited temporary spousal support. Pursuant to the terms of the premarital agreement, the court awarded Dianna alimony in the sum of $1,000 per month for a period of 15 months, as well as a lump-sum payment of $35,000. The court awarded Jeffrey the marital residence. The court ordered Jeffrey to pay $12,500 of Dianna’s attorney fees. Dianna filed a motion to alter or amend judgment which the district court did not announce a decision on upon but Dianna appealed. The Nebraska Court of Appeals dismissed Dianna’s appeal for lack of jurisdiction, finding it premature because the district court had not rendered a decision on her motion to alter or amend judgment. Upon remand, the district court entered an order overruling Dianna’s motion to alter or amend judgment and Dianna appealed. Jeffrey cross-appealed.
Did Dianna waive her right to appeal? Jeff argued that Dianna waived her right to appeal by accepting alimony payments after entry of the decree. The parties had established an automatic payment system whereby funds to satisfy Jeffrey’s temporary spousal support obligation were automatically transferred from Jeffrey to Dianna. Automatic payments continued after entry of the decree. Dianna attempted to avoid acceptance of these payments. The Court said that as a general rule, a party who accepts the benefits of a decree waives the right to prosecute an appeal from it. However, one notable exception to the acceptance of benefits rule was recognized by the Nebraska Supreme Court in Kassebaum v. Kassebaum, 178 Neb. 812, 135 N.W2d 704 (1965). In Liming v. Liming, 272 Neb. 534, 544-45, 723 N.W.2d 89, 97 (2006), the Nebraska supreme Court further developed the exception regarding a spouse who accepts the benefits of a divorce judgment under circumstances where the spouse’s right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review. Here, the Court found that this case falls within the exception set forth in Liming.
Was the premarital agreement enforceable? Dianna contended that the factors set forth in Neb. Rev. Stat. § 42-1006(1) are present in this case and that therefore, the premarital agreement is unenforceable. Reviewing how other jurisdictions have defined “voluntary” the Court said adopted a California definition:
[T]he party seeking to avoid a premarital agreement may prevail by establishing that the agreement was involuntary, and that evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the involuntariness of the agreement.
Reviewing Dianna’s arguments and the record, the Court found that Dianna voluntarily signed the agreement. Regarding Dianna’s argument that the agreement was unconscionable when it was executed (Neb. Rev. Stat. § 42-1006(3)) the Court found that “Dianna’s argument is illogical and unsupported by law.” Here, the provision deemed unconscionable by the district court was severable from the other provisions of the agreement. Because the Court concluded that the agreement was not unconscionable when it was executed, they said it was unnecessary to discuss whether Dianna was provided fair and reasonable disclosure of Jeffrey’s assets, as this factor alone is not sufficient to make the agreement unenforceable. (see § 42-1006(1)(b))
Did the district court err in failing to enforce the subparagraph which limited temporary spousal support? Here, the district court determined that the premarital agreement is valid and enforceable, with the exception of a subparagraph limiting spousal support. The district court found that the subparagraph “violates the intent and purpose of statutory provisions regarding an award of temporary support in a dissolution matter.” The court further found that enforcement of this provision would be inequitable and unconscionable. The resolution of this assignment turns upon the interplay between § 42-1004(1) and Neb. Rev. Stat. § 42-357. Section 42-1004(1)(d) grants parties the right to contract with respect to the modification or elimination of spousal support and does not limit its reach to only permanent spousal support. “If it was the intent of the legislature to allow parties to eliminate only permanent spousal support, it could have easily included a modifier in the statute.” Because the legislature did not do this, the Court recognized that § 42-1004(1)(d) applies to both permanent and temporary spousal support. However, they agreed with Jeffrey that the district court erred in holding that the subparagraph violated the intent and purpose of statutory provisions regarding an award of temporary support in a dissolution matter. While § 42-357 allows the court to enter an order for temporary support of a spouse and § 42-1004(1)(d) allows the parties to contractually eliminate spousal support, § 42-357 also empowers the district court to require a party to pay sums of money to enable the other party to prosecute or defend against the action. As such Nebraska’s Premarital Agreement Act does not allow parties to contract away the court’s authority to require such payments as despite the existence of a premarital agreement limiting the amount or duration of temporary spousal support, a trial court retains the ability to order payment of moneys necessary to enable the party to maintain or defend against the action. The district court made no finding that temporary payments beyond those specified in the premarital agreement were necessary to allow Dianna to defend against the action. As the rule giving preference to a specific statute over a general statute resolves the conflict, the Court ruled that § 42-1004(1)(d) is the more specific statute. The held that the subparagraph is valid under § 42-1004(1)(d) and therefore modified the district court’s decree on this issue.
Did the district court err in overruling Jeffrey's motion for temporary relief, a supersedeas bond, awarding Dianna attorney fees, and warding her custody of the parties' minor children? Regarding these assignments of error in Jeffrey’s cross- appeal, the Court found that the district court did not abuse its discretion in setting the supersedeas bond, Upon its de novo review of the record, they found no abuse of discretion in the district court’s award of attorney fees and that the district court did not abuse its discretion in awarding custody of the minor children to Dianna.
Conclusion: The Nebraska Court of Appeals here concludes that the district court correctly found that the majority of the premarital agreement was valid and enforceable, but erred in finding that the provision limiting temporary support was unenforceable. They also concluded that the district court did not abuse its discretion in dividing the marital estate, denying Jeffrey’s motion for temporary relief, setting the supersedeas bond, awarding Dianna attorney fees, and granting Dianna custody of the parties’ minor children. AFFIRMED AS MODIFIED.
In this case, defendant was sentenced to a three years of intensive supervised probation for a misdemeanor. The Nebraska Court of Appeals found that the district court committed plain error in that it sentenced defendant to the three year term a term because the charge did not charge him with a “second offense misdemeanor” as required under Neb. Rev. Stat. § 29-2263(1).
State v. Mlynarik, 16 Neb. App. 324 (2008)
Court of Appeals Headnotes
Probation and Parole:
1. Appeal and Error. The standard used to review the terms of probation is whether the trial court abused its discretion.
Sentences:
1. Appeal and Error. An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right.
Appeal and Error.
1. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
Date Filed and Case No.: January 15, 2008. No. A-07-449.
Court Appealed From: District Court for Sarpy County: David K. Arterburn, Judge.
Attorneys for the Appeal: Phillip G. Wright for Clinton M. Mlynarik, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Severs, Carlson, and Cassel, Judges.
Authored By: Carlson, Judge.
Summary: Clinton M. Mlynarik pled guilty in a plea agreement to the charge of attempted possession of a controlled substance, methamphetamine, a Class I misdemeanor. The district court sentenced the defendant to 3 years of intensive supervision probation with multiple probation conditions. Mlynarik appealed, claiming that some of the conditions of the probation are an abuse of discretion.
Were the conditions of probation an abuse of discretion? Mlynarik claimed three difficulties with the district court’s probation sentence. In sum, they were that certain conditions of the probation were unrelated to the drug charge, that some went beyond the “usual terms of probation,” and finally, that the sentencing court improperly delegated powers to the probation officer. After a review of the record and, specifically, the probation order in toto, the Nebraska Court of Appeals found no abuse of discretion. They noted that the judge at sentencing stated that Mlynarik had a criminal history going back to 1983 and substance, alcohol and drug-related offenses that went back to 1986. The Court found that these conclusions were totally supported in the record and by Mlynarik’s record. In regard to its probation sentence, the judge noted, “It’s a probation that’s designed to help you kick the habit that you’ve got and get you on the path towards sobriety and a more productive life and hopefully on a path that won’t bring you back before me or any other judge again.” Mlynarik admitted that his sentence was within the “statutory guidelines” and the Court found no abuse of discretion on this record.
Was there plain error in the district court sentencing? Mlynarik noted the potential of plain error in that the district court sentenced him to a term of 3 years’ probation for a “second offense misdemeanor.” The applicable statute uses the language of a “second offense misdemeanor” but apparently does not define the term. Neb. Rev. Stat. § 29-2263(1) (Cum. supp. 2006) states in part, “When a court has sentenced an offender to probation, the court shall specify the term of probation which shall be not more than five years upon conviction of a felony or second offense misdemeanor and two years upon conviction of a first offense misdemeanor.” (emphasis supplied.) The amended information in this case did not allege a second offense misdemeanor. The Court said that this question of whether a person who has committed a number of misdemeanors falls into the category of a “second offense misdemeanor” under the above statute was one of first impression. Based on the fact that the charge does not specify “second offense,” the Court did find that the district court’s sentence was plain error. Finding plain error, they modified Mlynarik’s sentence of probation from 3 years to 2 years.
Conclusion: Based on the foregoing, the Nebraska Court of Appeals affirmed the district court’s judgment as modified. AFFIRMED AS MODIFIED.
In this case, defendant was sentenced to a three years of intensive supervised probation for a misdemeanor. The Nebraska Court of Appeals found that the district court committed plain error in that it sentenced defendant to the three year term a term because the charge did not charge him with a “second offense misdemeanor” as required under Neb. Rev. Stat. § 29-2263(1).
State v. Mlynarik, 16 Neb. App. 324 (2008)
Court of Appeals Headnotes
Probation and Parole:
1. Appeal and Error. The standard used to review the terms of probation is whether the trial court abused its discretion.
Sentences:
1. Appeal and Error. An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right.
Appeal and Error.
1. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
Date Filed and Case No.: January 15, 2008. No. A-07-449.
Court Appealed From: District Court for Sarpy County: David K. Arterburn, Judge.
Attorneys for the Appeal: Phillip G. Wright for Clinton M. Mlynarik, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Severs, Carlson, and Cassel, Judges.
Authored By: Carlson, Judge.
Summary: Clinton M. Mlynarik pled guilty in a plea agreement to the charge of attempted possession of a controlled substance, methamphetamine, a Class I misdemeanor. The district court sentenced the defendant to 3 years of intensive supervision probation with multiple probation conditions. Mlynarik appealed, claiming that some of the conditions of the probation are an abuse of discretion.
Were the conditions of probation an abuse of discretion? Mlynarik claimed three difficulties with the district court’s probation sentence. In sum, they were that certain conditions of the probation were unrelated to the drug charge, that some went beyond the “usual terms of probation,” and finally, that the sentencing court improperly delegated powers to the probation officer. After a review of the record and, specifically, the probation order in toto, the Nebraska Court of Appeals found no abuse of discretion. They noted that the judge at sentencing stated that Mlynarik had a criminal history going back to 1983 and substance, alcohol and drug-related offenses that went back to 1986. The Court found that these conclusions were totally supported in the record and by Mlynarik’s record. In regard to its probation sentence, the judge noted, “It’s a probation that’s designed to help you kick the habit that you’ve got and get you on the path towards sobriety and a more productive life and hopefully on a path that won’t bring you back before me or any other judge again.” Mlynarik admitted that his sentence was within the “statutory guidelines” and the Court found no abuse of discretion on this record.
Was there plain error in the district court sentencing? Mlynarik noted the potential of plain error in that the district court sentenced him to a term of 3 years’ probation for a “second offense misdemeanor.” The applicable statute uses the language of a “second offense misdemeanor” but apparently does not define the term. Neb. Rev. Stat. § 29-2263(1) (Cum. supp. 2006) states in part, “When a court has sentenced an offender to probation, the court shall specify the term of probation which shall be not more than five years upon conviction of a felony or second offense misdemeanor and two years upon conviction of a first offense misdemeanor.” (emphasis supplied.) The amended information in this case did not allege a second offense misdemeanor. The Court said that this question of whether a person who has committed a number of misdemeanors falls into the category of a “second offense misdemeanor” under the above statute was one of first impression. Based on the fact that the charge does not specify “second offense,” the Court did find that the district court’s sentence was plain error. Finding plain error, they modified Mlynarik’s sentence of probation from 3 years to 2 years.
Conclusion: Based on the foregoing, the Nebraska Court of Appeals affirmed the district court’s judgment as modified. AFFIRMED AS MODIFIED.
