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Case Summaries
Dissolution, Marital Property, Retirement Fund, Valuation

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In this case, the Nebraska Supreme Court finds that in a dissolution where a consent decree divided the marital estate, the Husband was responsible for preparing qualified domestic relations orders to divide certain investments that he held. The husband failed to do so for several years, and some of the investments depreciated. The question presented in this appeal was whether, when the investments were finally divided in 2006, the wife should have been awarded her share based on the existing value of the investments or the value of the investments on the date specified in the decree.

Blaine v. Blaine, 275 Neb. 87 (2008)

Supreme Court Headnotes

Divorce:

1.  Contempt:

     a.  Equity. Dissolution of marriage cases are equitable in nature, and a civil contempt proceeding cannot be the means to afford equitable relief to a party.

     b.  Property Division. Under certain circumstances in a divorce action, it may be necessary for an individual to cite another party for contempt to determine whether the other party is holding property that properly belongs to that individual under the terms of a decree.

2.  Final Orders: Intent. Once a decree for dissolution becomes final, its meaning is determined as a matter of law from the four corners of the decree itself.

3.  Pensions: Final Orders. Where the terms of a final decree are unambiguous, a qualified domestic relations order enforcing that decree must dispose of assets in the manner required by the decree.

4.  Property Division: Equity. The purpose of assigning a date of valuation in a decree is to ensure that the marital estate is equitably divided.

Contempt:

1.  Damages. An award of damages is unavailable in a civil contempt proceeding.

Date Filed and Case No.: February 15, 2008. No. S-06-927.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb15/s06-927.pdf

Court Appealed From: District Court for Douglas County: Gerald E. Moran, Judge.

Attorneys for the Appeal: Charles M. Bressman, Jr. for Stephanie Blaine, appellant. Donald A. Roberts for Dennis Blaine, appellee.

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

Authored By: Gerrard, J.

Summary: Stephanie Blaine and Dennis Blaine were divorced by a decree entered on October 9, 1998, as a consent decree divided the marital estate. Dennis was responsible for preparing a qualified domestic relations order (hereinafter QDRO) to divide certain investments that Dennis held. Dennis failed to do so for several years, and some of the investments depreciated. Years after the decree, Stephanie’s filed a motion for an order requiring Dennis to, among other things, complete the QDRO. The district court found that since February 3, 1998, the value of the three investment accounts had decreased because of conditions in the stock market. But the court found that Stephanie had failed to prove that had the QDRO’s been properly executed, she would have been able to increase the value of the assets from their present value. Thus, the court concluded that Dennis’ one-half of the accounts was of equal value to Stephanie’s at the time of trial and that Dennis had not increased his value over that to which Stephanie was entitled. The court concluded that Dennis was in contempt for failing to prepare the QDRO’s and that Stephanie was entitled to “one-half of the current value” of the accounts. On July 20, 2006, the court entered an order finding Dennis to be in contempt. On August 9, 2006, two QDRO’s were filed in the court. Each of these QDRO’s awarded Stephanie “50% of the Plan,” without specifying a date of valuation or division. On August 15, the court entered an order finding that Dennis had complied with the earlier order of the court and purged himself of contempt. On August 17, Stephanie appealed to the Nebraska Supreme Court.

When the investments were finally divided in 2006, should Stephanie have been awarded her share based on the existing value of the investments or the value of the investments on the date specified in the decree? The Court said that as a general principle, the date upon which a marital estate is valued should be rationally related to the property composing the marital estate, and the date of valuation is reviewed for an abuse of the trial court’s discretion. Here, however, the issue is not the date upon which the accounts were to be valued for division but whether the QDRO’s should have incorporated the February 3, 1998, date specified in the decree. The Court found that a contempt proceeding is appropriate to resolve the meaning of disputed language in the decree as a matter of law: Were the QDRO’s entered on August 9, 2006, consistent with the terms of the October 5, 1998, decree? Looking to a similar issue from the Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998) the Court said that Hoshor stands for the proposition that where the terms of a final decree are unambiguous, a QDRO enforcing that decree must dispose of assets in the manner required by the decree. The Court said

In particular, the QDRO should reflect the value assigned and awarded in the decree. The purpose of assigning a date of valuation in a decree is to ensure that the marital estate is equitably divided. A specific, predictable date of valuation has the effect of clearly allocating the risk of any change in the value of the asset. An early valuation date, as in this case, sensibly assigns the risk of a decline in the value of the asset to the party in control of the asset. And because the valuation and distribution of a particular asset rarely takes place in a vacuum, a specific, consistent, and enforceable date of valuation permits the trial court to allocate all the assets of the marital estate in an equitable and fair manner. Thus, the equitable distribution of the marital estate depends on enforcing the date of valuation expressed in the decree.

Here, the Court ruled that, contrary to Dennis’ suggestion, the decree in this case clearly provided that February 3, 1998, was to be the valuation date of the disputed accounts. “The only reasonable interpretation of the decree is that Stephanie was awarded one-half of the dollar value of each account as of February 3, 1998.” As a matter of law, that award controls the date of valuation for purposes of subsequent QDRO’s.

In short, we conclude that the district court erred in entering QDRO’s that did not divide the disputed assets as of February 3, 1998, and in determining that by filing those QDRO’s, Dennis had complied with the requirements of the decree. The court, in effect, permitted Dennis to modify the terms of the decree without establishing the factual basis for a modification. Stephanie’s assignment of error has merit.

On remand, how will the district court determine the sum to which Stephanie is entitled? The Court noted that the evidence at the contempt hearing was not entirely clear with respect to the value of the accounts as of February 3, 1998, and that because of its disposition of this case, the district court made no findings with respect to valuation. On remand, the Court said it would be necessary for the district court to determine the sum to which Stephanie is entitled, representing one-half of the value of the accounts on February 3, 1998.

Conclusion: The Court reversed the judgment of the district court and remanded the cause with directions. Specifically, the district court was directed to (1) determine the value of each of the disputed accounts as of February 3, 1998, and (2) supervise the entry of QDRO’s transferring one-half of the February 3, 1998, value of each account to Stephanie. If the balance of any of the accounts is insufficient to satisfy the award, then the district court, assisted by the parties, should determine how Dennis will comply with the decree. REVERSED AND REMANDED WITH DIRECTIONS.

Stephan, J., DISSENTING disagreed with the majority’s central premise that the decree established February 3, 1998, as a “valuation date” for the retirement plan assets, resulting in an award to Stephanie of “one-half of the dollar value of each account as of February 3, 1998.” Had the award of a specific amount been the district court’s intent, it could easily have done so in explicit terms, but it did not. The marital estate includes only that portion of a pension plan which is earned during the marriage, and contributions to pensions before marriage or after dissolution are not assets of the marital estate. “We have held that parties may agree to the division of pension and retirement plan assets acquired outside the marriage, notwithstanding that a court could not divide such assets without such an agreement. That is not what the parties did in this case; here, they simply agreed that the assets held in the three retirement plan accounts as of February 3, 1998, were a part of the marital estate, to be divided equally between them.” Because the record reflects that Dennis did not withdraw any assets from any of the plans after February 3, 1998, Justice Stephan’s submitted that all three QDRO’s accomplished precisely what the decree intended: an equal division of the retirement plan assets which existed as of February 3, 1998, with fluctuation in market value shared equally by the parties. Under the majority’s disposition, however, Stephanie will receive much more than 50 percent of the accounts, perhaps even 100 percent plus an additional payment. “This is hardly the equal division required by the decree.” The dissent wrote that what Stephanie really sought in this case was damages resulting from Dennis’ delay in preparing the QDRO’s. “This argument fails for two reasons. First, as the district court noted, Stephanie did not prove that earlier execution of the QDRO’s would have prevented the decline in market value of her interest in the retirement plans. Second, and more basic, damages are not recoverable in a civil contempt proceeding. For these reasons, I respectfully dissent.”


Search and Seizure, Duration, Dog Sniff

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The principal issue on appeal here is whether a suspect's Fourth Amendment rights0 were violated when a law enforcement officer prolonged a traffic stop for several minutes in order to deploy a drug detection dog. Here, the Nebraska Supreme Court concludes that there was no violation of the suspect’s and that the evidence obtained from the vehicle as a result of the dog sniff was properly used to secure his conviction.

State v. Louthan, 275 Neb. 101 (2008)

Supreme Court Headnotes

Investigative Stops:

1.  Warrantless Searches: Probable Cause: Appeal and Error. When reviewing a district court’s determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search, ultimate determinations of reasonable suspicion and probable cause are reviewed de novo. But findings of historical fact to support that determination are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial court.

2.  Motor Vehicles:

     a.  Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.

     b.  Police Officers and Sheriffs. Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances that justified the traffic stop. ••• A traffic stop investigation may include asking the driver for an operator’s license and registration, requesting that the driver sit in the patrol car, and asking the driver about the purpose and destination of his or her travel. Also, the officer may run a computer check to determine whether the vehicle involved in the stop has been stolen and whether there are outstanding warrants for any of its occupants.

          i.   Probable Cause. In order to expand the scope of a traffic stop and continue to detain the motorist for the time necessary to deploy a drug detection dog, an officer must have a reasonable, articulable suspicion that the person is involved in criminal activity beyond that which initially justified the interference.

3.  Police Officers and Sheriffs:

     a.  Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis. ••• If reasonable suspicion exists, the court must then consider whether the detention was reasonable in the context of an investigative stop, considering both the length of the continued detention and the investigative methods employed. ••• Although a motorist’s nervousness is an appropriate factor for consideration within the totality of the circumstances of a prolonged traffic stop, its presence is of limited significance generally.

4.  Probable Cause: Proof. The degree of reliability of an informant that must be shown to justify an investigatory stop is less than that required to establish probable cause.

Probable Cause:

1.  Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause.

Criminal Law:

1.  Investigative Stops: Police Officers and Sheriffs: Probable Cause. An individual’s criminal history may be a relevant factor when determining whether an officer has reasonable suspicion to detain an individual.

Date Filed and Case No.: February 15, 2008. No. S-07-593.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb15/s07-593.pdf

Court Appealed From: District Court for Madison County: Patrick G. Rogers, Judge.

Attorneys for the Appeal: Melissa A. Wentling and Harry A. Moore for Richard l . Louthan, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lermann, JJ.

Not Participating: Heavican, C.J.

Authored By: Stephan, J.

Summary: Jason Bauer is a patrol officer and police service dog handler employed by the Norfolk Police Division. The evening of December 2, 2006, Bauer was conducting surveillance on the residence of Richard L. Louthan because of complaints from neighbors about “stop-and-go traffic” indicative of drug activity. When he arrived at the residence, Bauer observed a vehicle parked nearby, registered to Louthan which had expired license plates. Approximately 5 minutes after Bauer began his surveillance, he saw Louthan exit the residence and enter the vehicle. Bauer initiated pursuit with the intent of stopping Louthan based on the expired plates and stopped it. Bauer questioned Louthan about his involvement with drugs, and Louthan stated that he was free on bond on a pending charge of possession of a controlled substance and that an attempted manufacture charge had also been filed against him. Bauer asked Louthan to step out of the vehicle and obtained consent to search Louthan’s person. The search revealed nothing of consequence. Bauer then requested permission to search the vehicle, but Louthan refused. Bauer said that Louthan became “extremely nervous” at this point. Bauer directed Louthan to remain with a backup officer as Bauer retrieved his drug detection dog from his vehicle. The dog sniffed the exterior of Louthan’s vehicle (approximately 7 minutes had elapsed since the inception of the traffic stop.) The dog did not alert in his initial pass around the vehicle but after Bauer began to “detail,” directing the dog to sniff in certain locations of the vehicle, the dog alerted and eventually indicated the scent of drugs near the middle of the front hood of the vehicle. From the time that the dog sniff began until Bauer informed Louthan of the result, approximately 4 minutes had elapsed. Bauer then searched the interior of the vehicle and found Louthan’s wallet on the transmission hump of the vehicle inside of which two bags containing a “rocky substance” later confirmed to be methamphetamine were found. Louthan was arrested and charged with one count of possession of a controlled substance. Following the denial of Louthan’s motion to suppress the evidence obtained as a result of the search of his vehicle, a bench trial on stipulated evidence (Louthan’s objection to the dog sniff and resulting search was preserved) was held and Louthan was convicted and sentenced. He appealed and the State’s petition to bypass the Court of Appeals was granted.

Would the Court abandon its jurisprudence regarding the Fourth Amendment implications of prolonged traffic stops in favor of a “de minimis rule” employed by several state and federal courts? In this case, the district court determined that Bauer had a reasonable suspicion that Louthan was involved in unlawful drug activity because Bauer observed Louthan leave a residence where others had reported purchasing unlawful drugs, Louthan admitted that he had a pending charge of possession of methamphetamine, and Louthan appeared nervous during the traffic stop. The court further determined that the prolonged detention was reasonable, both with respect to its length and the manner in which it was conducted. The State argued that the district court reached the correct result by applying an incorrect standard and urged the Court to abandon its jurisprudence regarding the Fourth Amendment implications of prolonged traffic stops in favor of a “de minimis rule” employed by several state and federal courts. This rule, as articulated in U.S. v. $404,905.00 in U.S. Currency, 182 F.3d 643 (8th Cir. 1999) holds that “when a police officer makes a traffic stop and has at his immediate disposal the canine resources to employ this uniquely limited investigative procedure, it does not violate the Fourth Amendment to require that the offending motorist’s detention be momentarily extended for a canine sniff of the vehicle’s exterior.” The Court was not persuaded to abandon the reasonable suspicion standard in favor of the “de minimis rule” advocated by the State. The Court concluded that the “reasonable suspicion” test is the appropriate, necessary, and correct standard for resolving that question.

Was there reasonable, articulable suspicion to support the stop? The Court found no clear error by the district court in its determination of the historical facts on the record from the suppression hearing, which could be considered in determining whether Bauer had a reasonable, articulable suspicion to prolong Louthan’s detention for the time required to conduct a dog sniff of his vehicle. Based upon its de novo review of the totality of the circumstances, they concluded that reasonable suspicion existed, based primarily on the facts that Bauer observed Louthan leaving a house at which he had a reasonable basis for believing that unlawful drug activity was conducted and that Louthan admitted he had recently been arrested for possession of methamphetamine.

Was the extended detention in this case reasonable in the context of an investigative stop, both with respect to its duration and the investigative methods employed? Approximately 7 minutes elapsed from the time Bauer initiated the dog sniff until he arrested Louthan for possession of the controlled substance found in his vehicle as a result of the search precipitated by the canine alert and indication. Both the dog and Bauer as its handler were trained and certified for drug detection. The Court agreed with the determination of the district court that the extended detention was reasonable.

Conclusion: The Court found that the law enforcement officer here had a reasonable, articulable suspicion that Louthan was involved in unlawful drug activity which was sufficient to justify prolonging the traffic stop in order to deploy the drug detection dog which was present on the scene. The prolonged detention was reasonable in the context of a traffic stop, as to both its duration and the investigative methods used. The canine alert and indication provided probable cause for the warrantless search of Louthan’s vehicle, a point he does not contest. The district court did not err in denying Louthan’s motion to suppress, receiving the evidence obtained in that search, and convicting Louthan of the offense of possession of a controlled substance.

AFFIRMED.