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The Nebraska Court of Appeals modifies a prior decision.
State v. Sutton, 16 Neb. App. 287 (2008)
Court of Appeals Headnotes
None
Date Filed and Case No.: January 2, 2008. No. A-06-1297.
Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan2/a06-1297.pdf
Court Appealed From: District Court for Sheridan County: Paul D. Empson, Judge. Supplemental opinion
Attorneys for the Appeal: Paul Wess for William P. Sutton, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Sievers, Carlson, and Cassel, Judges.
Authored By: Per Curiam.
Summary: This matter is before the court upon the motion for rehearing of the State regarding the Nebraska Court of Appeals opinion in State v. Sutton, ante p. 185, ___ N.W.2d ___ (2007). While they overruled the motion for rehearing, the Court modified its opinion as follows:
In that portion of the opinion designated the “Analysis,” we strike the following language from the opinion, id. at 193, ___ N.W.2d at ___:
[15] Intent is not an element of first degree sexual assault as defined by § 28-319, one of the offenses with which Sutton was charged. See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). Intent, however, must be proved with respect to the second degree assault charge. We replace the stricken language with the following:
[15] First degree sexual assault under § 28-319(1)(a)
is a general intent crime. State v. Koperski, 254 Neb.
624, 578 N.W.2d 837 (1998). Intent must be proven with
respect to the second degree assault charge.
We also withdraw the language of syllabus point 15, and we
replace it with the following:
Sexual Assault: Intent. First degree sexual assault under Neb. rev. Stat. § 28-319(1)(a) (reissue 1995) is a general intent crime.
The remainder of the opinion shall remain unmodified.
FORMER OPINION MODIFIED. MOTION FOR REHEARING OVERRULED.
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In this divorce proceeding, the Nebraska Court of Appeals modifies that portion of the decree in which the trial court included a Social Security Disability payment as part of the marital estate. “We hold that while an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse’s Social Security award in equitably dividing the marital property.”
Dinges v. Dinges, 16 Neb. App. 275 (2008)
Court of Appeals Headnotes
Due Process:
1. Appeal and Error. Determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law, regarding which an appellate court is obligated to reach its own conclusions independent of those reached by the trial court.
Judges:
1. Recusal: A trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.
1. Appeal and Error. A motion to recuse for bias or impartiality is initially entrusted to the discretion of the trial court, and the trial court’s ruling will be affirmed absent an abuse of that discretion.
Property Division:
1. Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case.
2. Appeal and Error. The division of property is entrusted to the discretion of the trial judge and will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion.
Courts.
1. Generally, Nebraska state courts are not bound by the federal rules governing civil procedure in federal courts.
Appeal and Error.
1. To be considered by an appellate court, alleged error must be both specifically assigned and specifically argued in the brief of the party assigning the error.
Rules of the Supreme Court:
1. Records: Evidence. Neb. Ct. r. of prac. 5A(1) (rev. 2006) requires the official court reporter to include in the verbatim record of any trial or other evidentiary hearing the evidence offered at such trial or hearing.
Divorce:
1. Property Division. Under the analytical approach, compensation for an injury that a spouse has or will receive for pain, suffering, disfigurement, disability, or loss of postdivorce earning capacity should not equitably be included in the marital estate, but compensation for past wages, medical expenses, and other items that compensate for the diminution of the marital estate should equitably be included in the marital estate because they properly replace losses of property created by the marital partnership.
2. Appeal and Error. Appeals in domestic relations matters are heard de novo on the record, and thus, an appellate court is empowered to enter the order which should have been made as reflected by the record.
Federal Acts:
1. Social Security: Assignments. The anti-assignment section of the Social Security Act, 42 U.S.C. § 407(a) (2000), states that the right of any person to any future payment under that subchapter shall not be transferable or assignable, at law or in equity, and that none of the moneys paid or payable or rights existing under that subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
Constitutional Law:
1. Federal Acts: Social Security: Divorce: Property Division. The anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution prohibit a direct offset to adjust for disproportionate Social Security benefits in the property division of a dissolution decree. ••• While an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse’s Social Security award in equitably dividing the marital property.
Date Filed and Case No.: January 2, 2008. No. A-06-239.
Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan2/a06-239.pdf
Court Appealed From: District Court for Dakota County: Kurt Rager, County Judge.
Attorneys for the Appeal: Cindy E. Dinges, appellant, pro se. Dennis R. Ringgenberg and Daniel L. Hartnett for James E. Dinges, appellee.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: Cindy E. Dinges and James E. Dinges were married on October 23, 1998. No children were born to the marriage. At the time of the marriage, Cindy worked as a union pipefitter. James testified that Cindy worked full time until toward the end of 2000, when she had an appendicitis attack, underwent some surgeries, and was laid off. Cindy applied for Social Security disability benefits and on August 16, 2004 was awarded by the Social Security Administration that she was disabled and she would receive her first payment of $27,170 for the money she was due through September 2004 and then she would receive $632 per month. The notice of award stated that the administration found Cindy became disabled on December 3, 2000, that she had to be disabled for 5 full calendar months in a row before she was entitled to benefits, and that Cindy’s first month of entitlement to benefits was June 2001. On July 20, 2004, James filed a petition for dissolution. On July 27, Cindy moved from the marital home. In February 2005, Cindy purchased a modular home with a cash value of $54,000 in which she made a downpayment of $27,000, using the “Social Security back pay.” In the dissolution action, the trial court determined that Cindy’s lump-sum Social Security disability award represented benefits which were accrued during the marriage and that the award should be considered in equitably dividing the marital estate. Because Cindy used the proceeds from the award to purchase the modular home, the court stated that the modular home was part of the marital estate. The court proceeded to equitably distribute the marital assets and debts. Cindy appealed.
Did the court erred in denying Cindy due process by forcing her to go to trial without a final pretrial conference? Cindy’s argued that she was denied a pretrial conference in violation of Fed. R. Civ. P. 26(f). Nebraska state courts are generally not bound by the federal rules governing civil procedure in federal courts and the Nebraska rule Ct. R. of Dist. Ct. Pretrial Proc. (rev. 2000) makes a pretrial conference discretionary. Further, here the court held a pretrial conference which Cindy’s then counsel attended and the court’s decision not to hold another pretrial conference or a settlement conference after Cindy began handling her own representation did not amount to a denial of due process or an abuse of the trial court’s discretion.
Did the trial court make factual findings unsupported by the evidence? To the extent Cindy argued the court erred in receiving evidence over her objections or in dividing the marital estate, the Court said such arguments were not encompassed by her assignment of error and they would not consider them. While Cindy argued that the values used by the trial court were based on an exhibit offered by James showing values of property, which exhibit was not received into evidence “[b]ut curiously . . . was made part of the bill of exceptions after trial.” As Neb. Ct. R. of Prac. 5A(1) (rev. 2006) requires the official court reporter to include in the verbatim record of any “trial or other evidentiary hearing” the “evidence offered” at such trial or hearing. Thus, there was nothing “curious” about the presence of the exhibit within the bill of exceptions. “The pertinent question, however,” asked the Court “is whether, in deciding the issues, the trial court expressly relied on the exhibit which the court had refused to receive.” Reviewing the decree, including extensive findings of fact and conclusions of law, the Court found no indication that the values used by the court were derived from the refused exhibit. They concluded that the values used by the trial court were supported by other evidence which was received at trial.
Did the trial court err in finding no basis for recusal? Cindy moved the judge to recuse himself alleging she had “sufficient reason to believe” that the trial judge was biased against Cindy because of the judge’s actions in a telephonic hearing on October 28 where the judge “ridiculed” Cindy and “belittled her actions[,] all the while praising [James’] [a]ttorney for his alleged ‘correctness.’” The Court reviewed the transcription of the hearing, and found nothing in the court’s statements showing bias. “While a more complete explanation of the court’s rulings might have been helpful to this litigant, we find no abuse of discretion in the denial of the motion.”
Did the trial court err in classifying Cindy’s lump-sum Social Security disability award as marital property and awarding one-half of its value to James? Cindy argues that the court erred in classifying her lump-sum Social Security award as marital property. The Court had little difficulty agreeing with the trial court that under the analytical approach, Cindy’s lump-sum award would be included in the marital estate because it was compensation for the diminution of the marital estate. The problem presented by this case, which problem the trial court did not address, is that Cindy’s lump-sum award was composed of Social Security benefits. The anti-assignment section of the Social Security Act, 42 U.S.C. § 407(a) (2000), states:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
In Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), the Nebraska Supreme Court considered whether the husband, who participated in a public employee retirement fund in lieu of Social Security participation, was entitled to an offset or other compensation for the wife’s Social Security benefits when dividing marital property in a dissolution decree. The Webster court stated, “Courts generally agree that § 407(a) preempts state law that would authorize distribution of Social Security benefits, and that Social Security benefits themselves are not subject to direct division in a dissolution proceeding.” 271 Neb. at 796, 716 N.W.2d at 54. The Webster court cited to a number of cases where state courts considered the U.S. Supreme Court’s decision in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. ed. 2d 1 (1979), as instructing them that Social Security is not subject to an indirect adjustment through offset. Reviewing cases dealing with 42 U.S.C. § 407(a) and the Webster decisions, the Court concluded that the trial court erred in stating that it “should consider the lump sum award received by C[indy] as a marital asset subject to division in this dissolution proceeding” and then including the modular home, purchased post separation with the Social Security funds, in the marital estate. Webster precludes such treatment, however, the Court said it must also decide the issue discussed but not reached by the Webster court. “We hold that while an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse’s Social Security award in equitably dividing the marital property.” In this holding the Court relied upon the “weight of authority” noted by the Webster court. “Of course, such award is only one of many factors which we consider in our de novo review of the division of marital property.” Entering an order de novo the court modified the decree to exclude the Social Security award, traceable to the modular home, as part of the marital estate. A division of one-third to one-half of this marital estate would be to award a spouse between approximately $4,978 and $7,467. While the Court accepted the trial court’s distribution of the assets and liabilities, to equitably divide the marital estate, it ordered James to pay $11,000 to be distributed to Cindy. With such payment, Cindy will have received $5,060.52 of the marital estate, and James’ share will be reduced to $9,872.48.
Conclusion: The Court concluded that the county court did not abuse its discretion in denying Cindy a further pretrial conference or a settlement conference, in the factual findings it made in the decree, or in declining to recuse itself. However, they concluded that the court erred in finding Cindy’s lump-sum Social Security disability award to be a marital asset subject to division and therefore modified the court’s decree to equitably divide the marital estate after eliminating from the marital estate the $27,000 in Social Security disability benefits traceable to the modular home. AFFIRMED AS MODIFIED. |
