2018 Family Law Seminar
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. The NSBA Family Law Section presents 2018 Family Law Seminar Thursday, May 3, 2018 • 8:30 am - 4:30 pm Reception to follow at 4:30 pm Embassy Suites, 1040 P Street, Lincoln **Also available for viewing via live webcast.** *Nebraska MCLE #156347 (Regular/live). #156346 (Distance learning) 6.75 CLE hours, including 0.5 ethics. *Only 5 distance learning CLE hours may be claimed per year for Nebraska.* *Iowa MCLE #294892 (Regular/live). #294891 (Distance learning) 6.75 CLE hours, including 1 hour ethics. *Approved for 2 hours of Guardian ad Litem CLE credit* *Approved for 3.5 hours, including .75 ethics of Continuing Mediator Education for Parenting Act Mediators*
8:30 am Welcome 1:00 pm Ethics and Voluntary Pro Bono Legal Services 8:45 am Sexual Harassment in the Workplace: Carol A. Cleaver, NSBA Volunteer Lawyers Project Implementing Positive Business Practices in the Small-Firm Environment The Nebraska State Bar Association Volunteer Lawyers Kelli P. Lieurance, Baird Holm LLP, Omaha Project (VLP) develops and manages pro bono programs to help lawyers fulfill their special responsibility to provide pro Sexual harassment in the workplace may have reached a tip- bono legal services. This introduction to VLP will discuss ping point requiring new policies and procedures by employ- ethical considerations relating to pro bono representation in ers to match the emerging willingness of employees to speak programs facilitated by VLP. up and to take legal action. This presentation will focus on the legal liability that employers may face and will discuss 1:15 pm The Ethics of Limited Scope Representation recent cases regarding sexual harassment in the workplace. Proceedings The actions of both employers and employees impact legal Scott V. Hahn, Hightower Reff Law LLC, Omaha liability, economic success, and the ability to hire and retain This program will provide best practices for providing limited a diverse workforce. scope representation. This program will also provide how the 9:45 am Break Nebraska Rules of Professional Conduct and case law apply to limited scope representation. 10:00 am Parental Conflict: Special Consideration with LGBTQ Children 2:00 pm The Desjardins Deception: Preserving Megan Smith-Sallans, MS, LIMHP, LIPC, Omaha Alimony Rights and Obligations in Consent Decrees One of the most difficult experiences for a gender non- Kathryn Putnam, Astley Putnam, PC, LLO, Omaha conforming or transgender youth is getting caught in the This program is a “best practices” guide for properly pro- conflict between parents, caregivers, and legal guardians who tecting consent decrees from later modification. This pro- cannot see eye to eye concerning their child’s gender health. gram will examine Desjardins v. Desjardins, 239 Neb. 878 The fields of mental health and law have not always been (Neb. 1992), and the modifiability of Property Settlement effective at reducing parents, caregivers, or legal guardians’ Agreements. confusion and mutual antagonism. However, it is possible for parents/caregivers/legal guardians to minimize the harm 3:00 pm Break to the child by focusing on the child’s best interests. 3:15 pm Updates: Case Law and Child Support 12:00 pm Lunch (included with your registration) Calculator Adam Astley, Astley Putnam, PC, LLO, Omaha 12:30 pm Family Law: Legislative Update Tracy Hightower-Henne, Hightower Reff Law LLC, Omaha 4:30 pm Reception This program will provide an update on legislation passed by Sponsored by: the Nebraska Legislature during the 2018 Legislative Session Astley Putnam, PC, LLO and that impacts the practice of family law. Reagan Melton & Delaney, LLP This page intentionally left blank. Faculty Bios
Kelli P. Lieurance is a partner in Baird Holm's Labor and Employment Practice Group. She focuses on labor and employment law compliance, assisting employers with proactive, rather than just defensive, compliance efforts. Her practical approach not only offers clients a realistic view of their legal obligations, but also assists clients in implementing such obligations in a way that best suits their business needs. Kelli received her Juris Doctor from the University of Kansas Law School.
Megan Smith-Sallans, MS, LIMHP, LIPC is a psychotherapist in private practice who specializes in gender, sexuality and people in diverse relationships. Megan provides therapeutic services to gender creative children (ages 3 and up), adolescents, adults, families and couples. Nationally, Megan is a member of the World Professional Association for Transgender Heath (WPATH), the Society for the Psychological Study of Lesbian, Gay, Bisexual and Transgender Issues and the Society for the Scientific Study of Sexuality (SSSS). Locally, she is the co-founder of the Professional Transgender Resource Network, the Clinical Director for the University of Nebraska Medical Center’s Transgender Care Clinic, member of the Children’s Hospital’s Differences in Sex Development Multidisciplinary team, and member of NECTR (Nebraska Collaborative for Transgender Research). In partnership with Dr. Jean Amoura at the University Nebraska Medical Center, Megan co-facilitates the Parents and Caregivers of Gender Expansive Youth Support Group.
Tracy Hightower-Henne is a founding partner of Hightower Reff Law. Tracy’s area of practice includes family law, guardianships, adoption, limited scope representation, appeals, and post-conviction. She is also a Family Law Mediator certified by the Office of Dispute Resolution in Basic Mediation and Family Law. Tracy received her Juris Doctor and LL.M. from Thomas M. Cooley Law School.
Carol A. Cleaver is the Director/Managing Attorney of the Nebraska State Bar Association Volunteer Lawyers Project. Carol is responsible for developing, managing, and advancing innovative pro bono programs and events statewide. VLP recruits, trains, and schedules volunteers for self-help desks in county courthouses, walk-in clinics, Nebraska Free Legal Answers online, and for full or limited scope representation in select civil matters. VLP promotes pro bono activities to the public, collaborates with legal aid and legal service providers to assess and address unmet civil legal needs, and matches eligible low-income applicants with volunteer lawyers. Carol is a Nebraska native and graduate of Creighton University School of Law. Her practice experience includes representing clients in business and employment litigation, mediation, family, juvenile, and immigration. Carol also teaches business law and paralegal courses at Nebraska colleges and serves on several nonprofit advisory boards.
Scott V. Hahn is an Associate Attorney with Hightower Reff Law and specializes in divorce and criminal law. He is a graduate of the Creighton University School of Law. Scott clerked at Legal Aid of Nebraska and the Creighton Legal Clinic during law school, then after graduation at Legal Aid of Nebraska’s Omaha office. In the fall 2008 he became the Client Attorney at the YWCA-Omaha, now the Women’s Center for Advancement. While at the WCA Scott specialized and worked almost primarily in providing pro bono legal services to survivors of domestic violence/sexual assault. Aside from being the sole attorney for the WCA’s clients, in March 2014 Scott partnered with private attorneys to begin a monthly pro se WCA Legal Clinic. During the Summer 2013, he led the WCA’s efforts to become a Board or Immigration Appeals’ (BIA) recognized social service’s agency. Since its recognition the WCA has also provided immigration legal services to undocumented survivors needing to secure legal status in the United States.
Kathryn Putnam is a founding partner of Astley Putnam. She represents clients in divorces that are complex legally, financially and emotionally. She is also a Nebraska approved Guardian Ad Litem. Kate serves as vice chair of the Nebraska State Bar Association’s Family Law Section. Kate received her Juris Doctor from Pepperdine School of Law, a certificate in Dispute Resolution from the Straus Institute of Dispute Resolution, and a certificate from the Nebraska Office of Dispute Resolution in Mediation.
Adam Astley is a founding partner of Astley Putman. He represents parents, business owners and high-net-worth individuals in divorce cases. He also created the Nebraska Child Support Calculator currently used by Nebraska lawyer and judges. Adam received his Juris Doctor from the Creighton University School of Law This page intentionally left blank.
Sexual Harassment in the Workplace: Implementing Positive Business Practices in the Small- Firm Environment
Kelli P. Lieurance Baird Holm, LLP, Omaha
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. Notes: ______Notes: ______Notes: ______Notes: ______
Parental Conflict: Special Consideration with LGBTQ Children
Megan Smith-Sallans, MS, LIMHP, LIPC, Omaha
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. FAMILIES IN CONFLICT: LGBTQ+ YOUTH Megan Smith‐Sallans, MS, LIMHP, LIPC
Continuum of Sex and Gender “…sex is a vast, infinitely malleable continuum…” Ann Fausto‐Sterling BIOLOGICAL SEX (anatomy, chromosomes, hormones) male ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐female ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ intersex ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
GENDER IDENTITY (psychological identification of gender) third gender‐‐‐‐‐‐‐‐‐‐‐‐‐‐man ‐‐‐‐‐‐‐‐‐‐‐‐‐two spirited/bigender‐‐‐‐‐‐‐‐‐‐‐‐woman‐‐‐‐‐‐‐‐‐third gender
GENDER EXPRESSION (communication of gender) masculine ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ androgynous ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐feminine
SEXUAL ORIENTATION (romantic/erotic/affectionate response) asexual –lesbian –gay – pansexual ‐ polysexual – heterosexual –bisexual – Ryan Sallans adapted this from the Center for Gender Sanity
Transgender Identities Agender Non-Binary/Gender Fluid
Trans boy/man Trans girl/woman
1 Let’s Make Some Assumptions…
• Assume that families love their children and want them to have a good life.
• Meet families where they are.
• Create space for families to tell their stories. People need to feel heard and understood in a non‐judgmental way.
• Recognizes that parents and caregivers who are demonstrating non‐affirming behaviors are typically motivated by care and concern.
• Many parents feel helpless and inadequate, which leads to feelings of being out‐ of‐control.
• Families do not live in a vacuum, so we need to understand the complexity of how culture, extended family, religion, community, etc. contribute to how the family perceives their child.
2 AFFIRMATION ON A SPECTRUM
Family Acceptance Project
rejected at far greater risk
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Common Areas of Struggle • Who is my child?
• Why is my child this way? Is this “just a phase” ? Are there other factors that may be contributing?
• What do I tell other people about who my child is?
• What is the “right” pace for my child and what if I’m not there yet?
• Is the world safe for my child? And how much should my child adapt to the world or visa versa?
• What are the right medical options for my child (puberty blockers, cross‐sex hormones, surgical procedures)? • How do I navigate my religious and cultural beliefs that I feel go against who my child is?
3 Who me?
• Families may not be aware that their actions are non‐affirming. • Encouraging assimilation • Not talking about it at all • Not encouraging accessing resources/support groups • Not seeking out older mentors • Isolating their child from LGBTQ+ friends • Blaming the child for bullying/harassment/discrimination • Excluding child from family events or ignoring their identity at family events • Even if it seems small…
How we can help
• Be a support for parents and caregivers, it can be an isolating experience‐Make it clear that their involvement is desired. • Help move feelings of helplessness to being useful and necessary. • Educate about gender identity development and what we know about the effects of family rejection. • Bearing witness and working through grief/loss, anger/disgust, fear/anxiety. • Encourage parents to re‐examine their beliefs about gender roles and support a less dichotomous categorization of gender. • Do NOT pressure or shame child into changing who they are. Focus on loving child. • Encourage parents and caregivers to get support too!
• Create a safe environment and buffer for their child (zero tolerance policy).
• Explore parents own gender story/journey
• Understand that being an ally does not mean agreeing with everything. Kindness and respect.
• Help families develop the skills to listen to their child and Where We Want To Move develop respectful language to talk with their child. Parent(s)/Caregiver(s) • Help advocate for child within the school system, neighborhood, faith communities, extended family, etc.
• To be an advocate for their child with medical providers, insurance companies and legal areas.
• Help determine who and how to disclose information
• Emphasize the importance of parents thoughtfully taking their child’s lead and allowing them to have the freedom to change their mind at any point.
4 What Happens When Parents Don’t Agree?
• Goal‐To be able to think together about your child and have a single focus lens rather than two separate lenses • Child is caught in a vice. Can end up living a split life, especially if parents are divorced. • In the eyes of the gender nonconforming child, the parent who does not offer support can easily become the evil one while the more supportive parent is elevated to angel status. • ∙ The child may radically split how he or she is with each of the parents, depending on their level of acceptance. • ∙ That kind of radical splitting in the child’s sense of each of his or her parents or within him or herself is never good for healthy development.
What Happens When Parents Don’t Agree?
• ∙ On the other hand, if one parent is truly rejecting or abusive to the child, developing protective barriers against that parent and turning to the more supportive parent for nurture and protection so the child does not have to internally split his or her identity can be both a necessary and life‐preserving strategy.
• ∙ If tension gets so high that it threatens parents’ relationship: leaves a child feeling responsible for destroying a family just by trying to be his or her gender authentic self.
• ∙ If the tension erupts after parents are divorced, there is yet another potential risk for the child: he or she can become the object of a custody battle.
• It is the worst of all worlds, and dangerous to the child’s self, creating either a split in personality, an encrusted false gender self, or a full‐blown dissociative experience. Either the child goes nuts from listening to two stereo speakers out of synch, or the child turns off one of the speakers completely.
How can a mental health professional help with disagreements?
• First and foremost my job is to listen, not to tell, to facilitate, not to dictate‐this is where finesse and experience in working with couples and families can help. • Work with and use the cognitive dissonance: a mental conflict that occurs when beliefs or assumptions are contradicted by new information. • Many times these parents hurl accusations and recriminations at each other to try to rid themselves of their own internal worries about their child‐who their child is, how their child got there, and whatever are they supposed to do for that child • Share what we know‐stats and experience • Can have great impact on gender health but no control over gender identity (ex: that the dress‐ providing parent might simply be responding to the child’s desires, rather than shaping them) • Encourage never to act unilaterally • Explore own gender ghosts • Avoid courtrooms if at all possible
5 Contact Information
Megan Smith‐Sallans • 402‐871‐5920 • [email protected] • MeganSmithTherapy.com
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Family Law: Legislative Update
Tracy Hightower-Henne Hightower Reff Law LLC, Omaha
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. Nebraska Annual Family Law Legislative Update
Tracy Hightower-Henne Hightower Reff Law May 3, 2018
OVERVIEW
• 17 total family law related legislative bills • 4 passed into law
Carryover from First Session
- LB 26: Change service requirements for harassment protection order - Status: Judiciary Committee hearing January 18, 2017 - LB 60: Change Parenting Act provisions relating to limitation or denial of custody or access to a child. - Status: Judiciary Committee hearing February 9, 2017 - LB 394: Change provisions relating to possession of a deadly weapon by person subject to a domestic violence protection order. - Status: General File March 13, 2017
1 Carryover from First Session, cont’d
- LB 397: Require application of the Nebraska Rules of Evidence at parental termination hearings. - Status: Judiciary Committee hearing March 23, 2017 - LB 411:Change Nebraska Juvenile Code provisions relating to placement of siblings. - Status: General File April 12, 2017 - LB 456: Provide for supportive services for disabled parents in family and dependency matters. - Status: Health and Human Services Committee hearing February 8, 2017
LB 702
Change provisions relating to children's health care coverage and Title IV-D child support order modification procedures - Status: Governor signed April 4, 2018 (Speaker priority bill)
LB 714
Provide a procedure for judicial emancipation of a minor - Status: Governor signed April 18, 2018 (Speaker priority bill)
2 LB 785
Change terminology related to marriage - Status: Judiciary Committee hearing February 2, 2018
LB 795
Provide for an acknowledgment of maternity - Status: Judiciary Committee hearing February 2, 2018
LB 810
Change provisions of State Tort Claims Act relating to certain claims arising out of misrepresentation or deceit by the Department of Health and Human Services - Status: Withdrawn January 19, 2018
3 LB 826
Provide for jurisdiction to make factual findings under the Uniform Child Custody Jurisdiction and Enforcement Act - Status: General File March 8, 2018
LB 845
Change provisions relating to court proceedings involving family members - Status: Governor signed April 23, 2018 (Sen. Scheer priority bill)
LB 879
Provide for a parenting time summary report - Status: Judiciary Committee hearing February 2, 2018
4 LB 897
Change medical providers' duties under offense of failure to report injury or violence - Status: General File March 12, 2018
LB 1131
Define minor child relating to dissolution of marriage statutes - Status: Judiciary Committee hearing February 15, 2018
LB 1132
Require certain reporting by health care providers of injury from sexual assault, provide a procedure to set aside convictions of victims of sex trafficking and to expunge records, and provide for development and distribution of a statewide model anonymous reporting protocol - Status: Signed by Governor April 18, 2018 (Quick priority bill)
5 This page intentionally left blank. Nebraska Annual Family Law Legislative Update 2018
Tracy Hightower-Henne, Hightower Reff Law
Seventeen family law related legislative bills were introduced during the 105th Legislature, 2nd Regular Session. Throughout January and February, the Family Law Legislative Subcommittee provided its recommendations to the NSBA General Legislative Committee on each of the proposed bills. Of the seventeen proposed legislative bills, four were passed into law. Below is a summary and discussion of each bill.
1. (Carryover) LB26 – Change service requirements for harassment protection order.
Status. Did not make it out of the Judiciary Committee Hearing held on January 19, 2017.
Summary. The bill provides that persons with actual knowledge of a harassment protection order are deemed to have notice of such order and do not require service of notice as otherwise required for prosecution.
2. (Carryover) LB60– Change Parenting Act provisions relating to limitation or denial of custody or access to a child.
Status. Judiciary Committee hearing February 9, 2017
Summary. The bill creates a presumption that it is not in a child’s best interests to have unsupervised contact with a person who is required to be registered as a sex offender as the result of a felony conviction in which the victim was a minor. A person seeking to allow unsupervised contact has the burden of production and persuasion that such contact is in the child’s best interest. A person who is required to register as a sex offender as a result of a felony conviction in which the victim was a minor and who is seeking custody of, or unsupervised parenting time, visitation, or other access with, a child must prove by a preponderance of the evidence that the presumption described above does not apply. Moreover, any person with custody of or unsupervised time with a child must provide written notice to all other persons who have custody or access rights to the child before allowing unsupervised access to a person who is required to be registered as a sex offender as the result of a felony conviction in which the victim was a minor.
3. (Carryover) LB394– Change provisions relating to possession of a deadly weapon by person subject to a domestic violence protection order.
Status. General File March 13, 2017
Summary. The bill prohibits a person who is the subject of a harassment protection order and who is knowingly violating such order from possessing a deadly weapon. The bill removes from the offense of possession of a deadly weapon while subject to a domestic violence protection order the requirement that a person be knowingly in violation of such
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order. The bill includes in the definition of “abuse” in the Domestic Abuse Act abuse between family members, even if not part of the same household
4. (Carryover) LB397– Require application of the Nebraska Rules of Evidence at parental termination hearings.
Status. Judiciary Committee hearing March 23, 2017
Summary. The bill provides that (a) the Nebraska Evidence Rules apply to proceedings to terminate parental rights and (b) in other dispositional hearings in juvenile court evidence is inadmissible if it would be inadmissible in criminal proceedings
5. (Carryover) LB411– Change Nebraska Juvenile Code provisions relating to placement of siblings.
Status. General File April 12, 2017
Summary. The bill requires that DHHS file a written sibling placement report once every six months with the court (or shorter periods if ordered by the court). The bill authorizes appeal from a final juvenile court order by any party “who has properly intervened and whose substantial rights have been affected by a final order issued by a juvenile court.” The bill requires reasonable efforts to place siblings together, even if they do not have a preexisting relationship. The bill requires DHHS to file a written sibling placement report that describes the efforts of the department to locate the child’s siblings, whether a joint placement continues to be in the child’s best interests, or why a joint placement was not made. The bill authorizes a child’s sibling to intervene at any point in proceedings and to file a motion for joint-sibling placement, sibling visitation, or ongoing interaction between the siblings.
6. (Carryover) LB456– Provide for supportive services for disabled parents in family and dependency matters.
Status. Health and Human Services Committee hearing February 8, 2017.
Summary. The bill provides that (a) a parent’s disability shall not serve as a basis for denial or restriction of visitation or custody in family law or dependency cases; (b) a prospective parent’s disability shall not serve as a basis for denial of his or her participation in a private or public adoption; and (c) a person’s disability shall not serve as the basis for denying foster parenting status or guardianship. When such person’s disability is alleged to have a detrimental impact on a child, the party raising the allegation bears the burden of proof by clear and convincing evidence that the behaviors are endangering or will likely endanger the child. If this burden is met, the disabled person can demonstrate how supportive parenting services can alleviate the concerns raised. Supportive parenting services are services that may assist in employing alternative methods to discharge parental responsibilities
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7. LB702– Change provisions relating to children’s health care coverage and Title IV- D child support order modification procedures.
Status. Health and Human Services Committee Hearing January 26, 2018. Bill passed. Approved and signed by Governor April 4, 2018 (Speaker priority bill)
Summary. The bill changes the term “health insurance” to “health care coverage” and includes public medical assistance programs in the definition of “health care coverage.” The bill amends provisions regarding modifications of child support based on a voluntary reduction of income and the effect of incarceration.
8. LB714– Provide a procedure for judicial emancipation of a minor.
Status. Judiciary Committee Hearing January 24, 2018. Bill passed. Approved and signed by Governor April 18, 2018 (Speaker priority bill)
Summary. The bill provides that a minor who is a legal resident and who is at least 16, married, or living apart from his or her parents or legal guardian may file a petition in district court for a judgment of emancipation, and it sets forth requirements and standards for the petition, for notice, and for the court’s determination. The bill states that an emancipated minor shall not be considered an adult for prosecution of a criminal offense. The bill also provides a process to rescind a judgment of emancipation, providing that a judgment can be rescinded if: (a) it is in the best interests of the emancipated minor; and either (b)(1) the minor has become indigent and has insufficient means of support or (b)(2) the judgment was obtained by fraud, misrepresentation, or withholding of material information.
Comments: The Legislature adopted two of the Judiciary Committee’s amendments to the Bill, which the NSBA helped prepare. The amendments replaced the bill to provide greater detail regarding the process and requirements for emancipation and clarified that child support will be “suspended” not “terminated.”
9. LB785– Change terminology related to marriage.
Status. Judiciary Committee hearing February 2, 2018
Summary. The bill updates statutes regarding the solemnization of marriage to use the gender neutral term “spouse” and to be gender neutral with respect to the minister or magistrate present.
Comment: Replace “as spouses” with “in marriage” on line 16
42-103 (void marriages) changing “husband and wife” to “spouse” 42-109 (solemnization of marriage) (with comment) requirement that they take each other “in marriage” (not “husband and wife”)
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42-110 (marriage license requirement) removing a gender specific phrase of “under his hand” to “by the minister or magistrate”
10. LB795– Provide for an acknowledgment of maternity.
Status. Judiciary Committee hearing February 2, 2018
Summary. In the case of surrogate births, the bill requires hospitals to provide a notarized acknowledgement of maternity that is signed by the biological mother and birth mother. The bill requires DHHS, upon receipt of such acknowledgment, to enter the name of the biological mother on the child’s birth certificate.
11. LB810– Change provisions of State Tort Claims Act relating to certain claims arising out of misrepresentation or deceit by the Department of Health and Human Services.
Status. Withdrawn January 19, 2018
Summary. The bill includes in the State Tort Claims Act claims arising out of DHHS’s misrepresentation or deceit in failing to warn, notify, or inform of a ward’s history as a victim or perpetrator of sexual abuse in cases of adoption or placement.
12. LB826–Provide for jurisdiction to make factual findings under the Uniform Child Custody Jurisdiction and Enforcement Act.
Status. General File March 8, 2018
Summary. The bill provides that a court with jurisdiction to make a child custody determination also has the authority to make factual findings regarding (a) the abuse, abandonment, or neglect of the child, (b) the nonviability of reunification with at least one of the child’s parents due to such abuse, abandonment, or neglect, and (c) whether it would be in the best interests of the child to be removed to a country other than the U.S., including the child’s country of origin or last country of residence. The court can issue an order with such findings on its own motion or the motion of one of the parties.
13. LB845– Change provisions relating to court proceedings involving family members.
Status. Judiciary Committee Hearing February 2, 2018. Bill passed. Approved and signed by Governor April 23, 2018 (Sen. Scheer priority bill)
Summary. As amended, the bill seeks to prohibit discrimination based on a parent’s disability by adding the words “or disability” to Neb. Rev. Stat. Section 42-364(2), so it reads: “In determining legal custody or physical custody, the court shall not give preference to either parent based on the sex or disability of the parent and, except as provided in section 43-2933, no presumption shall exist that either parent is more fit or suitable than the other.” The bill also includes the provisions of LB 1051, which is the follow-up bill to LB 122
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from 2017 related to family member visitation petitions. It adds definitions, clarifies procedural issues, and adds requirements for the petition for visitation.
Comment: the standard should still be the best interest of the child. The Legislature adopted amendments to the bill to address the NSBA’s concerns, so our position moved from “oppose” to “monitor.”
14. LB879– Provide for a parenting time summary report.
Status. Judiciary Committee hearing February 2, 2018
Summary. The bill requires that DHHS adopt a parenting time summary report form that must be filed with the clerk of the court in every case in which parenting time with children is established or modified. The party initiating the case must file the form. The bill then requires clerks to compile these forms and send them at least on a monthly basis to DHHS, who must compile and track information by parent and by judge regarding the representation status of the parties; the existence of domestic violence, child abuse, chemical dependency, or mental health issues; and whether the matter was agreed or contested. And DHHS must publish this information, organized by judge, on at least an annual basis.
15. LB897– Change medical providers’ duties under offense of failure to report injury or violence.
Status. General File March 12, 2018
Summary. Repurposes the statute that requires ER physicians to report when they have treated wounds that appear to be connected with the commission of a crime. The bill would expand the duty to report to any medical provider. The bill also requires consent of victims over the age of 18 before the report is made.
16. LB1131– Define minor child relating to dissolution of marriage statutes.
Status. Judiciary Committee hearing February 15, 2018
Summary. The bill adds a definition of “minor child”: (a) a child of the parties to a dissolution of marriage action who has not reached the age of majority or (b) a child of the parties to a dissolution of marriage action regardless of age who is a dependent on one of the parties because of a mental or physical incapacity that began or was diagnosed before he or she reached the age of majority.
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17. LB1132– Require certain reporting by health care providers of injury for sexual assault, provide a procedure to set aside convictions of victims of sex trafficking and to expunge records, and provide for development and distribution of a statewide model anonymous reporting protocol.
Status. Judiciary Committee Hearing February 9, 2018. Bill passed. Approved and signed by Governor April 18, 2018 (Quick priority bill)
Summary. As introduced, the bill authorizes set-asides and the sealing of records related to offenses that stem from a person’s status as a victim of sex trafficking. As amended, the bill also includes provisions from three other bills: LB 678, relating to sealing criminal history records for persons whose charges were dismissed before January 1, 2017; LB 855, providing that, if a person is pardoned, he or she can file a motion in the sentencing court for an order to seal the criminal history record information related to his or her charges and conviction; and LB 897, relating to when medical providers must report injuries connected to a crime and creating an avenue for anonymous reporting for sexual assaults. (WFO Legislation)
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Ethics and Voluntary Pro Bono Legal Services
Carol A. Cleaver NSBA Volunteer Lawyers Project
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. 4/26/2018
Ethics and Voluntary Pro Bono Legal Services
Nebraska State Bar Association Continuing Legal Education Family Law Seminar May 3, 2018 1:00 p.m. –1:15 p.m. Embassy Suites, Lincoln, NE
Lawyers must be mindful of deficiencies in the administration of justice and …with liberty the fact that the poor, and and justice for all sometimes persons who are not poor, cannot afford adequate legal assistance. ― Preamble, Nebraska Rules of Professional Conduct
Representative of clients A Lawyer’s Officer of the legal system Responsibilities Public citizen
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Responsible to ensure equal access to justice for persons who cannot afford or get adequate legal counsel. Improve deficiencies in the administration of justice. Lawyer as a Exemplify the legal profession’s ideals of public service. Educate the public’s understanding of law and the Public Citizen justice system. Aid the profession to ensure equal access to justice. Devote professional time, resources and civic influence to ensure equal access to justice.
A lawyer should: Rule 3‐506.1 provide a substantial majority of the legal services Voluntary Pro without fee or expectation of fee to persons of Bono Service limited means. provide a substantial majority of the legal services without fee or expectation of fee to A lawyer should charitable, religious, civic, community, governmental aspire to render pro and educational organizations bono legal services in matters designed primarily to address the needs of persons of limited means.
individuals, groups or organizations seeking to secure and… or protect civil rights, civil liberties or public rights; or to charitable, religious, civic, community, provide any governmental and educational organizations in additional services matters in furtherance of their organizational purposes at no fee or substantially where the payment of standard legal fees would reduced fee to significantly deplete the organization's economic resources or would be otherwise inappropriate; or
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delivery of legal services at a substantially reduced fee to persons of limited means; or or… participation in activities for improving the law, the legal system or the legal profession.
a lawyer should voluntarily contribute financial support In addition, to organizations that provide legal services to persons of limited means.
Who is responsible to do pro bono?
EVERY lawyer, regardless of professional prominence professional work load
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The ABA urges all lawyers to 1, 2, 3 hours? provide at least 50 hours pro bono services annually. In Nebraska, pro bono is What if I don’t aspirational, not mandatory do pro bono? No discipline
Efforts of individual lawyers are not enough to meet the need for free legal services that exists among Pro Bono persons of limited means. Legal Services The government and the profession have instituted additional programs to provide those services. and In addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible $$$ Every lawyer should financially support such programs.
Participating in judicare programs and court appointments where the fee is substantially below a lawyer's usual rate. Rule 3‐506.2 Pro Bono Lawyers should be encouraged to support and Services participate in legal service organizations. Rule 3‐506.3 Law reform activities. Rule 3‐506.4 The Rules Non‐profit and court‐annexed limited legal services programs. Rule 3‐506.5
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Serving legal aid providers Serving on boards of pro bono or legal services organizations, nonprofit social, cultural, research, medical organizations Providing services to shelters, inmate rehabilitation, veterans organizations, nonprofit social, cultural, research, and medical organizations, etc. Pro Bono Speaking to students on legal topics that affect everyday life Activities Advocating for change in existing laws or for new law Serving on bar association committees CLE instructor Acting as a mediator or arbitrator Financially contribute to legal service programs
Every lawyer provided pro bono service for at least one What if? Nebraskan each year. Would there be justice for all?
86% of civil legal problems faced by low‐income Americans in a given year receive inadequate or no legal help. Of the estimated 1.7 million civil legal problems for which low‐ Well… income Americans seek LSC‐funded legal aid, 1.0 to 1.2 million (62% to 72%) receive inadequate or no legal assistance. 85% to 97% of persons who seek legal will not get legal needs fully met due to limited staff and resources.
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NSBA Self‐help desks Volunteer Walk‐in clinics Lawyers www.NE.freelegalanswers.org Project Limited scope and full representation
Self Help Desks
Walk‐in, first come first served Educate pro se litigants about the court process Answer basic questions about the law and court process; provide available court forms Provide referral to legal service providers More than 50% of visitors still need full representation
Lawyers in Bringing the Self Help Desk to communities where low‐income the City persons live and work. VLP collaboration with local bar associations, Legal Aid of Nebraska, law school legal clinics, legal service providers. Walk‐in Clinic
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www.NE.FreeLegalAnswers.org American Bar Association national administrator Pro Bono 42 states participating User eligibility Online Attorney eligibility Relaxed ethics rules on conflicts of interest
Priority cases divorce, with and without children parenting time issues enforcing support orders Limited Scope or guardianship of minors and adults Full Representation bankruptcy, debtor issues wills, powers of attorney, TODDs Applicants cannot get legal assistance elsewhere More than 75% of cases referred to VLP go unplaced
Recognition in NSBA publications Special Recognition at NSBA events Responsibility Pro Bono awards for meritorious service Personal involvement in the problems of the disadvantaged can be and… one of the most rewarding experiences in the life of a lawyer.
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Nebraska MCLE #156347, Regular/live Nebraska MCLE #156346, Distance learning
Iowa MCLE #294892, Regular/live Thank You Iowa MCLE #294891 , Distance learning
.25 Ethics Nebraska State Bar Association Volunteer Lawyers Project 635 S 14th Street, Ste. 200 Lincoln, NE 68508 (402) 475‐7091 [email protected]
8 NEBRASKA RULES OF PROFESSIONAL CONDUCT Preamble: A lawyer’s responsibilities Sections 3-506.1 to 3-506.5: Public Service Cite as Neb. Ct. R. of Prof. Cond. § Accessed April 24, 2018
Preamble: A lawyer’s responsibilities.
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others. [3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. [4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. [5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. [6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. [7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service. [8] A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. [9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. [10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. [11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. [12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. [13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct when properly applied, serve to define that relationship.
Sections 3-506.1 to 3-506.5: Public Service.
§ 3-506.1. Voluntary pro bono service.
A lawyer should aspire to render pro bono legal services. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
COMMENT
[1] Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono services annually. [2] Paragraphs (a)(1) and (2) recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the legal services rendered annually to the disadvantaged be furnished without fee or expectation of fee. Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means. The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law. [3] Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women's centers and food pantries that serve those of limited means. The term "governmental organizations" includes, but is not limited to, public protection programs and sections of governmental or public sector agencies. [4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorneys fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. [5] Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers from performing the pro bono services outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply, government and public sector lawyers may fulfill their pro bono responsibility by performing services outlined in paragraph (b). [6] Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. A lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities. [7] Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible. [8] Law firms should act reasonably to enable and encourage all lawyers in the firm to provide pro bono legal services. [9] The responsibility set forth in this Rule is not intended to be enforced through disciplinary process.
§ 3-506.2. Accepting appointments.
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
COMMENT
[1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.
Appointed Counsel
[2] For good cause, a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust. [3] An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.
§ 3-506.3. Membership in legal services organization.
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or (b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.
COMMENT
[1] Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client- lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer's clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession's involvement in such organizations would be severely curtailed.
[2] It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances.
§ 3-506.4. Law reform activities affecting client interests.
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
COMMENT
[1] Lawyers involved in organizations seeking law reform generally do not have a client- lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.
§ 3-506.5. Nonprofit and court-annexed limited legal services programs.
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
COMMENT
[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services – such as advice or the completion of legal forms – that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10. [2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client's informed consent to the limited scope of the representation. See Rule 1.2(b). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation. [3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified by Rules 1.7 or 1.9(a) in the matter. [4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer's firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program. [5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.
NE FREE LEGAL ANSWERS
Dear Nebraska Attorney:
Thank you for registering to do pro bono online through NE Free Legal Answers. We trust you will find participation on the Website to be a convenient and rewarding way to do pro bono service. By participating in this pro bono program, you are making a difference in the lives of countless low-income Nebraskans who need access to a lawyer and our system of justice.
The following are answers to common questions from volunteers. You will also find this information on the Website. If you have additional questions about use of the Website, please contact the NFLA Website Administrator at [email protected] or (402) 475-7091.
What is NE Free Legal Answers?
NE Free Legal Answers is a pro bono project of American Bar Association (ABA) Free Legal Answers. The Website is based on the walk-in clinic or dial-a-lawyer model where clients request brief advice and counsel about a specific civil legal issue from a volunteer lawyer. Lawyers provide information and basic legal advice without any expectation of long-term representation. The Website is administered by a national administrator at the ABA and each participating state has a state administrator. The Nebraska State Bar Association Volunteer Lawyers Project is the sponsoring state administrator for NE Free Legal Answers. Designated VLP staff oversee administration of the Nebraska site.
The Web address for the Nebraska site is www.NE.FreeLegalAnswers.org. The Web address for the ABA national site is www.FreeLegalAnswers.org.
Can all Nebraska lawyers participate?
Yes. All approved lawyers can participate, including private practice, litigation and transactional lawyers, in-house, business, corporate, nonprofit, and government lawyers. This Website is designed to help lawyers previously unable to participate in traditional pro bono programs due to employment restrictions, scheduling conflicts, personal obligations and geographic location. If you are already providing pro bono legal service, this Website provides a new convenient way to do more pro bono work.
• NLADA malpractice insurance covers your participation on the Website. • You can view questions before deciding to take a question. • You have 3 days to answer questions you take from the queue. • The Website provides links to legal topics to help you research your answer. • You can return an unanswered question to the queue. • Your name is not disclosed to the client unless you disclose it, the client makes a specific request for your name, or the law requires it. • The general rule for conflicts of interest do not apply (See Conflicts of Interest). • You can track your research and time spent doing pro bono on the Website.
Important Notice: The law firm that developed the software for ABA Free Legal Answers intended the software to be used as a service to the public only. The ABA Board of Governors approved the project on the basis that Free Legal Answers will be used for pro bono service only, not for private gain. Donors and prospective donors are informed the project is solely for public service and not for private gain. You cannot use the Website to solicit paying clients.
The ABA national site administrator and state site administrator may perform periodic reviews to ensure compliance with use of the Website. If you have questions about this notice, contact the NFLA Website Administrator at [email protected] or (402) 475-7091.
Who can use NE Free Legal Answers?
Eligible users: • must be Nebraska residents, 18 years of age and older. • must have household income less than 250% of the federal poverty guidelines. • cannot have more than $10,000 in assets (checking, savings, stocks or bonds). • cannot be incarcerated. • cannot ask for assistance with criminal law matters. • can post 3 different civil questions in a calendar year. • can ask the responding lawyer a follow-up question to the lawyer’s answer until the lawyer closes the question.
How does a user determine if s/he can use the Website?
A user is prompted to answer questions that determine financial and case type eligibility. If the user meets the eligibility requirements, the user will sign a Use Agreement, create a username and password, and post a request for legal advice. The user will provide information about the legal issue to help the lawyer answer the question and select a category that best describes their question (e.g. immigration, divorce). The user can upload documents or photographs for the lawyer to review. The user must disclose the county where the user resides and the names of adverse parties to help the answering lawyer check for conflicts of interest.
Do you verify the user’s financial information?
No. Similar to the walk-in clinic or call-a-lawyer model, this pro bono activity does not require users to verify financial information. Qualified users sign a Use Agreement confirming the information given to use the Website is true.
I registered to participate, what are the next steps?
After you register, NFLA sends an email to the VLP website administrator to confirm your eligibility to use NFLA. The state administrator will check to make sure you are an active member of the Nebraska Bar, in good standing. You will receive an email notice when you can start answering questions. Once approved, you can start answering questions immediately.
Am I covered by malpractice insurance if I participate?
Yes. Participation on the Website is covered by NLADA professional liability insurance through the American Bar Association. If you ask the client to contact you outside the Website (e.g., phone call, consultation, pro bono representation) you are not covered for activities outside the Website. If you want to give pro bono legal assistance to a client outside the Website, contact the NFLA Website Administrator at [email protected] or (402) 475-7091. You may be able to provide pro bono assistance through the Volunteer Lawyers Project. VLP provides professional liability insurance coverage for pro bono activities through VLP. The ABA and state website administrator may, from time to time, need to contact participating lawyers related to this insurance coverage.
Do you provide the client my name and contact information?
No. You are identified as “Volunteer Lawyer.” Your name is not disclosed unless you disclose it, the client requests it, or the law requires it. The ABA maintains records of all Website use if information about your limited representation on the Website is needed in the future. The ABA maintains Website records for two years.
Is an attorney/client relationship created if I answer a question?
Yes. A lawyer/client relationship forms when you answer a user’s question. The relationship is limited in scope and duration as described in the client and lawyer’s use agreements. The representation is limited to answering the client’s posted question and a follow-up question from the client, if any, to your answer. You mark the question closed when you determine you have given adequate counsel in response to the question. The lawyer and client consented to the limited scope and duration of the relationship by accepting the terms of the use agreement.
How do I check for conflicts of interest?
Each posted question includes the user’s name and county. A conflict of interest exists if, at the time you view a posted question, you know that answering the question involves a conflict of interest with a current or former client. If you are associated with a firm, the general rule for imputation of conflicts exists only if you know another lawyer in your firm has a conflict of interest related to the user’s question. Neb. Ct. R. of Prof. Cond. § 3-506.5 governs the short- term limited legal services you will provide on this Website. If you know a conflict exists, do not take the question. Users are informed of the possibility that another lawyer at your firm may be representing other parties with an interest in the posted question.
When does the attorney/client relationship end?
When you answer a question, you can mark the question answered and closed. This ends the attorney/client relationship. Often, the client may have a follow up question to your response. The ABA recommends leaving the question open to allow the client an opportunity to ask additional questions related to your response. If the client does not ask any follow up questions within 10 days of your response, the site will automatically close the question for you.
Am I required to log in regularly?
No, but we hope you will. You may log in any time to review a list of user questions and select questions you want to answer. The state administrator will send emails to participating lawyers with updates about questions in the queue, including the number and type of questions open or pending. You are not required to respond to the email. The state site administrator may communicate with you directly from time to time.
Will you email me new questions are posted so I do not have to log in?
If you want to receive emails when new questions are posted, you can subscribe to the types of questions you may be interested in answering. After you log in to the Website, select the “Manage my Subscriptions” tab at the top of the web page. Under “Subscribe” you can select (green check) the question categories you would like emailed to you. You can also add additional email addresses for your subscriptions. To stop receiving emails for new questions, click the green check to end your subscription. Volunteers who use this feature report it as a great tool to stay informed about new questions and regular minder of the need for pro bono legal assistance. You control email notices you receive about new questions.
Can I search for questions I want to answer by county or practice type?
Yes. You can view all the open questions, or you can filter questions according to county or question type. Questions are grouped by a category the user selects (e.g., divorce, debt). You can read the full question before deciding to take it from the list to answer it.
Do I need to answer a question right away?
No. Once you take a question, you have 3 days to answer it. If you do not respond within 3 days, the question will automatically return to the main queue. You can always retake the question if it is still available when you log in. However, a best practice would be to take a question when you are ready to answer it.
What if I need more information to answer the question?
You can ask the client to provide additional information to help you answer. Once you answer the question, the client will be asked to accept the answer you provide or send a follow up question. You mark the question closed when you determine you have answered the client’s question. The client cannot ask follow up questions after you close the question. What if the user does not list the adverse party name(s)?
You can ask the user to provide this information before you answer the question. If the user responds and you identify a conflict with the adverse party, contact the NFLA Website Administrator at [email protected] or (402) 475-7091 and ask to reassign the question. The question will be removed from your personal queue and placed back into the main queue.
What if I decide I do not want to answer a question I took from the queue?
Return it to the main queue immediately so another lawyer can answer. If you forget, the question will automatically return to the main queue after three days. You can always answer the question if it is still available in the main queue.
What if the client does not respond to my request for additional information?
If the client does not respond to your question within ten (10) days, the site will automatically close the question. The client will receive an email explaining why the question was closed.
How long does a question stay on the Website?
30 days. If a question is not answered, the user will receive an email with instructions to seek assistance elsewhere. The user will be provided a list of other resources for assistance.
Are training materials and resources available on the Website?
Yes. The Website provides basic information, materials, and statutes to assist you and a short tutorial showing how easy it is to use the Website. If you have recommendations for additional resources and materials to assist volunteers, contact the NFLA Website Administrator at [email protected]. Attach any materials you would like to see added to the Website.
Will I earn CLE credit for pro bono services?
No. Nebraska does not award CLE credit for pro bono legal services. VLP records volunteer time to use for volunteer reporting and volunteer recognition. Your participation may be reported in NSBA media that recognize volunteer participation, including the NSBA Website, The Nebraska Lawyer, VLP fundraising articles and reports, and the NSBA E-counsel Newsletter.
Can I record the time I spend working on the Website?
Yes. You can record all time you spend reviewing questions, researching information and answering questions. You will receive a prompt before you log out to record your time. You can always record time spent any time you are on the Website by selecting the “Log my Hours” tab at the top of the Web page.
How does the Website collect and protect confidential information and advice?
The Website is designed to insure privacy. The Web program is administered using email through a platform that limits access based on a screening. Confidentiality is maintained because the ABA Website Administrator and state site administrator only have access to content between the lawyer and client. Information available to the ABA Website Administrator and state site administrator and to the pro bono lawyer remain confidential subject to the limitations of the Privacy/Confidentiality Policy. The client requests for information and the response of lawyers participating in NE Free Legal Answers may be maintained in a database to measure the effectiveness of the project. Protocols will be established and followed to maintain the security of this database. A guarantee against a security breach is not possible when using the Internet and Internet-based systems.
For each visitor to the Webpage the web server automatically recognizes only the consumer domain name. This information is collected for statistical purposes. Aggregate information is collected on pages a user visits or accesses on this Website. Collected information is used to improve the content of the Web page and is not shared with other organizations for commercial purposes. Information may be disclosed when legally required at the request of government authorities conducting an investigation to verify or enforce compliance with the policies governing this Website and applicable laws or to protect against misuses or unauthorized use of this Website.
Records are maintained online for two years.
How do I contact the Nebraska site administrator with a question?
If you have a question or run into a technical problem with the site, please contact the NFLA Website Administrator at [email protected] or (402) 475-7091. VLP will visit your law firm to give a presentation on use of the Website and to register lawyers at your firm.
NFLA Website Administrator: Carol Cleaver
Are there other pro bono opportunities through VLP?
Yes. To learn more about pro bono opportunities, visit the VLP Website at www.NeVLP.org and review the Volunteer Opportunities page. This will connect you to the Volunteer Information Center where you can view cases needing pro bono assistance, information about Self-Help Centers and periodic walk-in clinic events, and review updated information about pro bono, VLP activities, and volunteer services. Pro Bono Legal Service
Nebraska Free Legal Answers NE.FreeLegalAnswers.org
Nebraska Free Legal Answers is a website where financially qualifying Nebraskans can ask a Nebraska volunteer lawyer a question about a civil legal problem. This is a new pro bono opportunity for Nebraska lawyers*, including in-house, corporate, and government lawyers. As a volunteer with the NSBA Volunteer Lawyers Project, • You can log in anytime, anywhere you have Internet • You select the questions you want to answer • You have training and resources available Online • You are covered by NLADA malpractice insurance • You are anonymous, referred to only as “Volunteer Attorney” • You are providing valuable pro bono service in Nebraska
To register, visit NE.FreeLegalAnswers.org or contact Carol Cleaver at (402) 475-7091 or [email protected]
Nebraska Free Legal Answers is a website operated by the American Bar Association and the Nebraska State Bar Association Volunteer Lawyers Project 635 South 14th St. #200 Lincoln, NE 68508 (402) 475-7091
*Participating lawyers must be active members of the Nebraska State Bar, in good standing.
Need help with a legal question? No money for a lawyer?
www.NE.FreeLegalAnswers.org It’s easy, it’s fast, and its free to qualified users! Go to the Website www.NE.FreeLegalAnswers.org to see if you qualify to ask a Nebraska volunteer lawyer a question about a civil legal problem, for FREE! • You must be at least 18 • You can’t be incarcerated • You must meet low-income eligibility requirements • You need an Internet connection (public library has free Internet) If you qualify: • You can post a civil (non-criminal) legal question for free • You will get an email when a lawyer answers your question • Log in to the Website to read the lawyer’s response
NE Free Legal Answers is a national online pro bono project sponsored by the American Bar Association in collaboration with the NSBA Volunteer Lawyers Project, 635 S 14th Street, Ste. 200 Lincoln, NE 68508 (402) 475-7091.
OMAHA’S FAVORITE PRO BONO EVENT
LAWYERS IN THE CITY FRIDAY, JUNE 8, 2018 9am - Noon & 1pm - 4pm Volunteer 1, 2 or 3 hours, or all day
Metropolitan Community College, South Omaha Campus 2709 Babe Gomez Avenue (27th & Q Street) ITC Conference Center
• This event brings lawyer and nonlawyer volunteers into communities where low-income residents work and live to provide brief, limited advice on civil issues. • Meet with walk-in visitors to answer legal questions on uncontested divorce, debtor issues, landlord/tenant, name changes, powers of attorney, protection orders, small claims, and immigration. Brief limited advice only. • Assist with self-help forms comprehension and completion, make referrals to legal and legal service providers • Experience not needed, lawyers and nonlawyers work in teams. • Training materials provided in advance. • Pizza lunch 12-1; snacks and refreshments all day.
Sign up www.SignUpGenius.com (enter creator email [email protected] in the “Search for a Sign Up” section on the home page. Or, contact Carol Cleaver at [email protected] or (402) 475-7091. Information also available from each event sponsor. Lawyers in the City is a pro bono legal service event sponsored by:
The Ethics of Limited Scope Representation Proceedings
Scott V. Hahn Hightower Reff Law LLC Omaha, NE
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. The Ethics of Limited Scope Representation (LSR) 2018 Annual Family Law Seminar May 3, 2018
Scott V. Hahn, Associate Attorney, Hightower Reff Law, Chair of the Limited Scope Section of the NSBA
Limited Scope Representation: What is it? oClient and lawyer select services that the lawyer will provide oLawyer works on a discrete task: the process of taking a client’s legal matter and breaking it down into separate tasks oThe client pays for the specific tasks only, either based on an hourly fee or on a flat fee, typically without a large retainer oClient remains pro se oWhen the specific task is complete, the lawyer’s work is done oAlso known as unbundling or discrete task representation
Limited Scope Representation: What it’s NOT oLimited liability oSecond class practice oUnethical oJust for poor people
1 Limited Scope Representation: Why is it necessary? oIncrease number of pro se filers oReduction in funding for civil legal services resulting in fewer attorneys serving low income individuals oIncrease in self help books and online information fostering the perception that the legal process is easily navigated oCost of full service representation is prohibitive oAlso a high number of people with legal problems who are NOT using the court system at all oConsumer driven demand: clients want it
Limited Scope Representation: What is it?
World of pro se
LSR clients
Typical areas of law for LSR services oFamily law oCollaborative divorce oLandlord/Tenant oMediation coaching oTransactional work drafting contracts, deeds, etc. oAdvising clients in advance of the purchase or sale and closing, but not appear at closing oCoaching through litigation without entering an appearance oBankruptcy: representing clients at the initial creditors’ meetings
2 Examples of LSR oDocument drafting oObtaining a Protection Order • Standalone estate documents (Wills, Trusts, etc.) oConsulting regarding client legal rights • Corporate entity formation • Complaints, Answers, etc. oSettlement Counsel/Negotiation • Settlement Agreements oPreparing exhibits oDocument Review oOrganizing discovery materials • Mediation Agreements • Divorce Decrees oIn Court Representation
LSR and the NE Rules of Professional Conduct o3‐501.2(b)‐(e): Scope of representation o3‐501.1: Competence o3‐501.3: Diligence o3‐501.4: Communication with client o3‐501.5: Fees o3‐501.6: Confidentiality of information o3‐501.7 through 10: Conflict of interest o3‐504.2: Communication with person represented by counsel o3‐506.1: Voluntary pro bono service o3‐506.5: Nonprofit
§3‐501.1: Competence Neb. Ct. R. of Prof. Cond. § 3‐501.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and judgement reasonably necessary for the representation.
3 § 3‐501.2(b): Scope of Representation Neb. Ct. R. of Prof. Cond. § 3‐501.2: Scope of representation and allocation of authority between client and lawyer. (b) A lawyer may limit the scope of his or her representation of a client if the limitation is reasonable in the lawyer’s judgment under the circumstances and the client gives informed consent to such limited representation.
§ 3‐501.2(b): Scope of Representation oLSR is not for all clients, all lawyers or all legal problems oFactors to consider in determining whether LSR is appropriate under the circumstances: oThe client: must have some degree of emotional detachment, basic intelligence level, some degree of self motivation oThe matter: the importance of the interests at stake, the complexity of the matter, the amount of discretion a judge or other decision maker will exercise oThe judge: how helpful is the judge in the process, i.e. level of patience? Will the judge explain the process, i.e. the order the testimony will be taken, how a party can answer a question, etc.
§ 3‐501.2(b): Scope of Representation Whenever a lawyer limits the scope of the engagement it is critical to define the scope and memorialize the attorney client relationship. Because client’s “misremember” things, a written engagement document allows lawyers to better respond to malpractice claims.
4 Limited Scope means that I am not representing you in each and every aspect of your case. Because my representation is limited in nature, there will be some tasks that you are required to do…
§ 3‐501.2(b): Scope of Representation Lawyers should redefine the scope of the engagement between the lawyer and the client if both parties agree that the original terms of the engagement agreement no longer adequately defines the duties in which the lawyer has been engaged to work on behalf of the client. Watch out for the “scope creep”
It is essential that we both have the same understanding of our respective responsibilities in connection with your case.
5 § 3‐501.2(c): Scope of Representation
Neb. Ct. R. of Prof. Cond. § 3‐501.2: Scope of representation and allocation of authority between client and lawyer. (c) A lawyer may prepare pleadings, briefs, and other documents to be file with the court so long as such filings clearly indicate thereon that said filings are “Prepared By” and the name, business address, and bar number of the lawyer preparing the same. Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case. Any filing prepared under this rule shall be signed by the litigant designated as “pro se”, but shall not be signed by the lawyer preparing the filing.
§ 3‐501.2: Scope of Representation and Rules of Pleading § 6‐1111(b) Signing of Pleadings Neb. Ct. R. Pldg. §6‐1111: Signing of pleadings (b) When a lawyer is not an attorney of record, such lawyer may prepare pleadings, briefs and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are “Prepared By” along with the name, business address, and bar number of the lawyer preparing the same, and that preparing such filings shall not be deemed an appearance by the lawyer in the case.
§ 3‐501.2(c): Scope of Representation
6 § 3‐501.2(d): Scope of Representation Neb. Ct. R. of Prof. Cond. § 3‐501.2: Scope of representation and allocation of authority between client and lawyer. (d) If, after consultation, the client consents in writing, a lawyer may enter a “Limited Appearance” on behalf of an otherwise unrepresented party involved in a court proceeding, and such appearance shall clearly define the scope of the lawyer’s limited representation.
§ 3‐501.2: Scope of Representation and Rules of Pleading § 6‐1109(h) Signing of Pleadings Neb. Ct. R. Pldg. §6‐1109: Pleading, special matters (h) If, after consultation, the client consents in writing, an attorney may enter a “Limited Appearance” on behalf of an otherwise unrepresented party involved in a court proceeding, and such appearance shall clearly define the scope of the lawyer’s limited representation. A copy shall be provided to the client and opposing counsel or opposing party is unrepresented.
7 § 3‐501.2: Scope of Representation and Rules of Pleading § 6‐1109(i) Neb. Ct. R. of Prof. Cond. § 3‐501.2(e): Scope of representation and allocation of authority between client and lawyer and Neb. Ct. R. Pldg. § 6‐1109(i): Pleading, special matters Upon completion of “Limited Representation,” the lawyer shall within 10 days file a “Certificate of Completion of Limited Representation” with the court. Copies shall be provided to the client and opposing counsel or opposing party if unrepresented. After such filing, the lawyer shall not have any continuing obligation to represent the client. The filing of such certificate shall be deemed to be the lawyer’s withdrawal of appearance which shall not require court approval.
§ 3‐501.3: Diligence Neb. Ct. R. of Prof. Cond. § 3‐501.3: A lawyer shall act with diligence and promptness in representing a client. Comment: A lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. …a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. Doubt about whether a client‐lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so.
8 § 3‐501.3: Diligence File Closing Letter: formally acknowledges that a legal matter has come to an end and is sent for the purpose of memorializing the conclusion of the matter. Serves to lessen any confusion that a lawyer is continuing any work on behalf of the client.
Non‐engagement Agreement: Sometimes it is necessary to disclaim in writing that an attorney client relationship has been formed, if a prospective client has reason to believe that they may have received legal advice from an attorney who is not acting as counsel.
Don’t forget there I have now completed is still a hearing on all of the tasks which we [DATE] at which time agreed I would do you will be representing in our agreement. I know yourself. of no other matters on which you have requested my assistance. The following are issues which you have declined my assistance:
§ 3‐501.4(a): Communications Neb. Ct. R. of Prof. Cond. § 3‐501.4(a): A lawyer shall (1) promptly inform the client of any decision or circumstances which require the client’s informed consent; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
9 § 3‐501.5(b): Fees Neb. Ct. R. of Prof. Cond. § 3‐501.5(b): The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation…
Attorney will perform the specific legal tasks included… Attorney will not perform the following:
If the client decides to retain the attorney for handling the entire case, the client and attorney will enter into a new written agreement
10 You understand that you are responsible for filing all documents with the court and for any follow up necessary after filing.
You understand that the representation of the Firm is limited to the scope specifically set forth above.
§ 3‐501.6: Confidentiality of Information Neb. Ct. R. of Prof. Cond. § 3‐501.6: The lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is [otherwise permitted in the Rules].
11 § 3‐501.7 through 10: Conflict of Interest Neb. Ct. R. of Prof. Cond. § 3‐501.7: Conflict of interest; current clients. Neb. Ct. R. of Prof. Cond. § 3‐501.8: Conflict of interest; current clients; specific rules. Neb. Ct. R. of Prof. Cond. § 3‐501.9: Duties to former clients. Neb. Ct. R. of Prof. Cond. § 3‐501.10: Imputation of conflicts of interest; general rule.
§ 3‐504.2: Communication with Person Represented by Counsel Neb. Ct. R. of Prof. Cond. § 3‐504.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Comment [4]: This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation Comment [10]: In the event an “Entry of Limited Appearance” is filed, opposing counsel may communicate with such lawyer’s client on matters outside the scope of the limited representation, and by filing such limited appearance, the lawyer and the client shall be deemed to have consented to such communication.
§ 3‐506.1: Voluntary pro bono service Neb. Ct. R. of Prof. Cond. § 506.1: A lawyer shall aspire to render pro bono legal services. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means…
12 § 3‐506.5: Non profit and court annexed limited legal services programs Neb. Ct. R. of Prof. Cond. § 3‐506.5: A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short‐term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter… Comment [2] A lawyer who provides short‐term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. If a short‐term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel.
Why would clients want LSR? oAffordability; clients may be able to afford some limited legal services oPro se clients often do not understand the legal system and its rules o Rules of Civil Procedure and Rules of Evidence are overwhelming o Contract requirements are not always clear oPro se litigants overwhelmingly lose in court oSome legal representation is better than none oClients will take a more involved role
Why should attorneys offer LSR? oExpand your client base. Convert unmet legal needs into practice opportunities (some LSR converts into full scope) oIncrease the volume of work for your office by specializing in one or more types of discrete tasks oClients are happier because they are paying less oConsider the large volume of clients who do not qualify for legal aid but do not have thousands of dollars for a retainer. oRemember…LSR clients usually are not “full service” clients looking to save money. Usually they are nobody’s clients looking for affordable legal help. oIncreases public access to affordable legal services oMight use it for aspiration of pro bono work oBeneficial for the bench
13 Setting up a successful LSR practice oAdvertise: tell potential clients that you provide the service oStay within your field of practice/knowledge (competence) oConflict checks still required oComplete a thorough initial interview oIdentify the problem oIdentify the lawyer’s tasks oIdentify the client’s tasks oSpecify communication issues with opposing counsel
Setting up a successful LSR practice oDocument everything in writing! Include everything you are going to do and what you are NOT going to do for the client oEngagement letter (include the specific ethics rules) oFee agreement with informed consent oClosing letter oDo not advise beyond the agreement or extend your work into those matters (watch out for the “scope creep”) oAmend the agreement if necessary. oDo not attend the portion of the hearing that is outside the limited representation
THANK YOU!
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The Desjardins Deception: Preserving Alimony Rights and Obligations in Consent Decrees
Kathryn Putnam Astley Putnam, PC, LLO Omaha, NE
May 3, 2018 Embassy Suites, Lincoln, NE
This page intentionally left blank. The Desjardins Deception Protecting Alimony Provisions in Consent Decrees
Kathryn D. Putnam, Esq. Astley Putnam, P.C., L.L.O [email protected]
Benefits of Property Settlement Agreements:
• Reduced time and expense • Party control over outcome • Predictability • Certainty • Finality
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Desjardins v. Desjardins 239 Neb. 878, 479 N.W.2d 451 (1992)
• A consent decree is usually treated as an agreement between the parties. It is accorded greater force than ordinary judgments and ordinarily will not be modified over the objection of one of the parties. • Alimony awards entered pursuant to a consent decree may be modified for good cause shown. • Good cause is demonstrated by at material change in circumstances which were not within the contemplation of the parties at the time of the decree or simply accomplished by the mere passage of time.
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1 BUT… HOW THE HECK ARE YOU SUPPOSED TO KNOW WHAT WAS CONTEMPLATED BY THE PARTIES AT THE TIME OF THE DECREE IF THE AGREEMENT DOESN’T ACTUALLY TELL YOU?
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Common Reasons to Seek Modification of Alimony:
• Unexpected illness or disability • Job loss • Increased earning capacity of either supported spouse or payor spouse • Cohabitation by supported spouse • I don’t like how she spends “my” money so I’m going to make up some flimsy reason to try to terminate or reduce my obligation based on one of the other reasons listed above
5
Standard Alimony Language:
ALIMONY: Commencing on May 1, 2018 and continuing for a period of eighty‐two (82) months, the Husband shall pay alimony to the Wife of Three Thousand and No/100 Dollars ($3,000.00) per month. Alimony shall terminate upon the remarriage of the Wife, the death of either party, or the passage of time prescribed in this Paragraph, whichever first occurs.
What else was contemplated?
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2 What Information Will You Need to Defend a Future Modification? • How the amount and duration was calculated • The statutory criteria applicable to this set of facts (Neb. Rev. Stat. 42‐ 365) • The future events that were actually contemplated by the parties • Common future events that the parties do not wish to have trigger a modification proceeding • Circumstances the parties agree would give rise to a proper modification action
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Test Case:
• Parties married at age 19 • 20 year marriage • Two minor children ages 12 and 16 • Husband earns $130,000 per year • Wife has a college degree obtained in 2002, she has not worked outside the home since graduating • Wife has been accepted to a 3‐year master’s program which will start in the Fall of 2018
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20. ALIMONY. Husband will pay alimony in the amount of $1,000.00 per month for a period of Seventy‐Two (72) months. Alimony is taxable to the Wife as income and deductible to the Husband. Husband’s alimony obligation will terminate upon the death or remarriage of the Wife. The Husband must secure his alimony obligation with the life insurance benefits provided to him throughhis employer, so long as such benefits are provided, until his alimony obligation is discharged. The Husband must provide the Wife with proof of beneficiary designation each year. The parties make the following recitation of stipulated facts regarding the amount and duration of alimony agreed to herein: a. The parties have been married for 20 years. b. The Wife experienced a significant interruption in her personal career to provide for the care and education of the parties’ minor children. c. The Wife is in need of further education and training so she can become self‐supporting. Such education will not interfere with the needs of the minor children. d. The parties anticipate that the Wife will complete her education and training during the alimony term and may obtain gainful employment prior to expiration of the term. e. The Wife’s increase in earning capacity and completion of her education before the expiration of the alimony term is a circumstance contemplated by the parties and will not be a basis to modify alimony. f. It is anticipated that the Husband will have an increase in his annual income prior to the expiration of the alimony term. The parties agree that an increase in the Husband’s income is contemplated by the parties and will not serve as a basis to modify alimony. g. It is anticipated that either party may cohabitate with another adult (romantic partner, parent, adult child, roommate, etc.) and that such cohabitant will contribute to the payment of the household expenses during the alimony term. 9
3 Cohabitation Considerations:
• Aging Parents: By 2030, the number of Americans over the age of 65 is expected to increase from 13.1 million (2011) to 30.1 million in 2040. • Between 2010 and 2040, the number of people over age 75 living alone will double from 6.9 million people (2011) to 13.4 million by 2040. • Adult Children: In 2014, 32.1% of adults between the ages of 18‐34 lived with at least one parent.
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Court Finding that Agreement is Not Unconscionable: • Neb. Rev. Stat. 42‐366: Requires the Court to make a finding that the agreement and provisions for support are not unconscionable.
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Updates: Case Law and Child Support Calculator
Adam Astley Astley Putnam, PC, LLO Omaha, NE
May 3, 2018 Embassy Suites, Lincoln, NE
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Case Law Update
Nebraska Supreme Court Opinions May 19, 2017 to April 20, 2018
Nebraska Court of Appeals Opinions May 16, 2017 to April 24, 2018
NCLE Family Law Update May 3, 2018
Adam E. Astley Astley Putnam, P.C., L.L.O. 1412 Howard Street, #200 Omaha, NE 68102 (402) 932-7900 [email protected]
Nebraska Supreme Court Opinions May 18, 2017 to April 20, 2018
-2- White v. White and McGough v. Douglas County 296 Neb. 772 (2017)
TL;DR: A County cannot be obligated to pay fees for a Guardian Ad-Litem or attorney for minor children when neither of the parties is indigent; the same rule applies on appeal.
Facts:
As part of a divorce, the District Court appointed James McGough as an attorney for the parties’ children. At the end of the divorce, the Court ordered each party to individually pay McGough $2,073 in fees. The Wife filed for bankruptcy and discharged her half. McGough requested and received an Order for Douglas County to pay that portion of the fee. That order was reversed in a prior appeal in White v. White, 293 Neb. 439 (2016).
In this case, McGough requested an additional fee award from the District Court for defending the appeal in White I. The Court granted the Motion and ordered the county to pay $1,719 for McGough’s work defending the first appeal. The County appealed again, assigning as error that (1) McGough did not request fees from the appellate court, (2) there is no statutory basis for a fee award, and (3) a fee award would be contrary to the law of the case.
Holding:
The Supreme Court reversed the District Court’s decision for essentially the same reason it reversed in White I : that neither party was indigent.
Legal Principles:
A District Court lacks the authority under § 42-358(1) to order a County to pay for an attorney to represent minor children in a dissolution action when neither of the parties is indigent.
The Court did not address the question of whether the fees should have been sought from the Appellate Court under Neb. Ct. R. App. P. § 2-109(F) because it ruled that when neither party is indigent, the fee cannot be recovered from the County through any means.
Discussion:
This case produces a harsh result for the court-appointed attorney. And County governments are starting to resist fee applications for GAL’s and attorneys for children, so we can expect this result to occur more in the future.
The District Court could have done a number of things to prevent this, including (1) ordering the parties to pay an advance deposit, (2) ordering the obligation to pay the fee was joint and several, (3) ordering the liquidation of marital property to pay the fee, and
-3- possibly (4) making findings to attempt to qualify the obligation as a domestic support obligation as defined by 11 U.S.C. § 101 (14A) (this requires that the obligation be owed to or recoverable by a spouse, former spouse or child of the debtor, or such child’s parent, legal guardian, or responsible relative).
-4- Erin W. v. Charissa W. 297 Neb. 143 (2017)
TL;DR: Trial Court did not abuse its discretion when it overruled Wife’s motion for genetic testing when the Husband resisted the Motion, and when the Wife did not attempt to legitimize a different father for the child; Wife’s uncorroborated testimony was not enough to overcome the statutory presumption of paternity.
Facts:
Erin (Husband) and Charissa (Wife) were married in 2013, separated in 2014, and Erin filed for divorce in 2015. Charissa filed a Motion seeking genetic testing to de- legitimize a child born during the marriage. Erin resisted, saying that he had acknowledged paternity, has always held himself out to be the father, Charissa did not attempt to challenge paternity for nearly two years. The Court overruled Charissa’s Motion.
At trial, Charissa testified that she started to suspect Erin was not the father when the child was 6 months old. She did not ask the man she believed to be the father to submit to a private DNA test because she did not want him to be a part of the child’s life. Erin testified that he signed the child’s birth certificate, he never questioned whether he was the father, and he has actively parented ever since.
The Trial Court held that Charissa had not rebutted the statutory presumption of legitimacy, and it made an express finding that Erin was the child’s father. The Court awarded the parties joint legal and joint physical custody, and ordered Erin to pay a nominal amount of child support. Charissa appealed, assigning as error (1) denial of the request for genetic testing, (2) the Court’s finding that she did not rebut the presumption the child was legitimate, and (3) the order of joint custody.
Holdings:
The Court held that the denial of the Motion for Genetic Testing was not an abuse of discretion on these facts. The Court explained that Charissa had only tried to invoke § 43-1412.01 (Nebraska’s disestablishment statute) and did not raise § 43-1414 (the statute authorizing genetic testing for establishment of paternity) at trial. Because of this, the Court did not consider whether § 43-1414 would have provided a basis to compel the testing.
The Court also held that Charissa had not rebutted the statutory presumption of paternity when her only evidence was uncorroborated testimony and photographs of the child (and when the alleged father did not testify).
Finally, the Court held that the District Court did not abuse its discretion awarding joint physical custody, when the evidence established that Erin was a good father, loved the child, and provided appropriate care and support.
-5- Legal Principles:
1. The statutory presumption of legitimacy of children in § 42-377 may only be rebutted by clear, satisfactory, and convincing evidence (Alisha C. v. Jeremy C., 283 Neb. 340 (2012)), and the testimony or declaration of a husband or wife is not enough to overcome the presumption.
2. The disestablishment statute (§ 43-1412.01) presupposes a legal determination of paternity has already been made, and only operates after a final judgment has been entered which contains such a determination.
Discussion:
The Court was clearly bothered by Charissa’s desire to disestablish paternity in the Husband without establishing paternity in another man. Not only did Charissa fail to take any action to establish paternity in the man she believed to be the father, but she testified that she did not want that man to have a place in the child’s life. Had Charissa attempted to legitimize the person who she believed to be the biological father, the outcome may have been different.
At the same time, the opinion largely relies on Charissa’s failure to identify an appropriate statute or discovery rule to support her Motion. It hints that § 43-1414 may provide some relief (though that statute contemplates cases to establish paternity). And the opinion is completely silent on whether a Motion for Examination of Persons made under Neb. Ct. R. Disc. § 6-335 would have produced a different outcome.
-6- Stephens v. Stephens 297 Neb. 188 (2017)
TL;DR: Active appreciation of a premarital asset is marital; appreciation will be considered “active” if either spouse materially participates in the enterprise, even in a small way; the proponent has the burden to prove the lack of active efforts by either spouse in order to preserve the asset as nonmarital.
Facts:
Robert and Janet were married in 1991 and Robert filed for divorce in 2014. Robert co- founded a business called Stephens & Smith Construction in 1971 and he incorporated the business in 1974. At the time of the marriage, Robert’s 34% of the outstanding stock was worth less than $300,000, and by the time of the divorce, it had appreciated to more than $5,000,000.
At all relevant times, Robert worked for the corporation full-time as its president. He drew a salary of $265,000 and his total income was more than $500,000. The business had six department heads, approximately 20 “key” personnel, and approximately 200 employees. Robert made financial and investment decisions, oversaw real estate, attended meetings on a variety of subject areas, advised department heads, and personally guaranteed millions of dollars in company debt.
Robert also owned interests in other entities where he had lower levels of participation, and the District Court classified some of these as marital and some as non-marital. Janet had not worked in 10 years due to a mental illness that required periodic hospitalizations.
The District Court held that Robert’s entire interest in Stephens & Smith was non- marital, and that under Van Newkirk v. Van Newkirk, 212 Neb. 730, it could not attribute any particular portion of the entity’s growth in value to Robert’s efforts. The District Court did, however, award Janet a Grace award of $1.1 million, which it calculated to be less than 1/3 of the value of appreciation in Stephens & Smith. The District Court also awarded Janet $1,000 of alimony under § 42-362 (which provides for support for a spouse who is mentally ill).
Janet appealed, assigning as error (1) the finding that the appreciation of Stephens & Smith was non-marital, (2) the failure to require alimony under § 42-362 to continue for as long as the mental disability continued, and (3) the order to distribute Robert’s membership interests in the smaller businesses to Janet when the cooperation of the other owners could not be guaranteed.
Holdings:
-7- The Court only considered the District Court’s determination that Stephens & Smith was entirely non-marital, and it chose to evaluate the Grace award because that issue was inseparable from the determination that Stephens & Smith was non-marital.
The Court extended Stanosheck v. Jeanette, 294 Neb. 138 (2016) and Coufal v. Coufal, 291 Neb. 378 (2015) to apply to any nonmarital asset, meaning that accrued investment earnings or appreciation of nonmarital assets during the marriage are now presumed to be marital unless the party seeking to classify the growth as nonmarital proves (1) the growth is readily identifiable and traceable to the nonmarital portion of the asset, and (2) the growth is not due to the active efforts of either spouse.
Furthermore, the Court held that a company’s value for the purposes of active appreciation is attributable only to the efforts of first-tier management or similar persons with control over the asset’s value, and it rejected the notion that many stakeholders can dilute the value added by any one person. Further, the Court reasoned that favorable market conditions merely create the opportunity that the skilled owning spouse detects and seizes.
The Court therefore vacated that portion of the property division determining that the appreciation of Stephens & Smith was nonmarital, and the Grace award. It then directed the District Court to reconsider the division of marital property in light of a finding that all of the appreciation in Stephens & Smith is marital.
The Court affirmed the alimony award, holding that Black v. Black, 223 Neb. 203 (1986) imposed a limit on alimony for a mentally ill spouse, and required that it terminate upon the end of the mental illness. The Court indicated that Black imposes a limitation, not a requirement on the term of alimony under § 42-362.
Lastly, the Court affirmed the transfer of Robert’s smaller business interests to Janet even though they contained restrictive shareholder agreements. The Court reasoned that (1) Robert has assured the District Court his other partners would consent to the transfers, and (2) Janet had a remedy if the transfers were not accomplished within 30 days.
Legal Principles:
1. Growth on all premarital assets will be presumed marital unless the proponent proves (1) the growth is readily identifiable and traceable to the nonmarital portion of the asset, and (2) the growth is not due to the active efforts of either spouse.
2. Alimony awarded under § 42-362 is limited to the duration of the mental illness, but is not required to last that entire duration.
3. Due to the radical change in the treatment of appreciated premarital property, the Court expects Grace awards to be awarded far less frequently.
-8- Discussion:
This case creates an entirely new framework for the treatment of premarital property, and it overrules Van Newkirk in two different ways. First, it shifts the burden of proof back to the spouse who claims the premarital ownership interest to prove the appreciation was passive. And second, it eliminates the distinction as to whose active efforts caused the appreciation, i.e., efforts of either the owner or the spouse will cause the appreciation to be marital. Finally, if a spouse is actively involved in the management of the asset at a tier-one management level or equivalent, the Court will ascribe good luck and market conditions to the spouse’s efforts, and will deem the appreciation from those factors to be marital property.
-9- In re: Estate of Psota 297 Neb. 570 (2017)
TL;DR: A waiver of rights on death in a premarital agreement is easier to enforce than a waiver of rights on divorce because the challenger must prove they didn’t sign the agreement voluntarily, and the agreement was unconscionable when executed and they neither received nor waived fair disclosure.
Facts:
Eldon and Sharlene married in 2011 (this was a second marriage for both of them, and they both had children from a prior marriage). One week before the wedding, they discussed a premarital agreement. Six days prior to the wedding, they met an attorney selected by Eldon. A few days later, they reviewed a draft of the Agreement. Sharlene requested changes, which were made. The final agreement was signed the day before the wedding, and contained a mutual waiver of all rights on the death.
Eldon died in 2013, and his last will had been signed 8 years earlier, so it didn’t mention Sharlene, his Wife of 2 years. Eldon’s estate was worth about $10 million. Sharlene filed an Application to be treated as an omitted spouse under § 30-2320, which puts a spouse who is omitted from a will because they marry after the will is signed in the same place as a surviving spouse when the decedent left no will. § 30-2320 provides that the right to a claim for an omitted spouse can be waived in the manner described in § 30- 2316.
The estate resisted Sharlene’s application, arguing that the right to this claim was validly waived in the premarital agreement. The Probate Court sided with the estate, and Sharlene appealed, essentially attacking the enforceability of the premarital agreement and claiming that she did not receive an adequate financial disclosure.
Holdings:
The Court pointed out that § 30-2316(b) is nearly identical to § 42-1006, which governs the enforceability of premarital agreements generally. There is, however, one distinction. § 42-1006 states (restated) that an agreement is not enforceable against a party if the party did not execute the agreement voluntarily, or if the agreement was unconscionable when executed and fair disclosure was not given or waived. § 30- 2316(b) contains the same language, except it omits the connector “or” and contains no connector in its place. The Court thus held that a waiver of rights upon death under §30-2316 is unenforceable against a party if the party did not execute the agreement voluntarily and it was unconscionable when executed and fair disclosure was not given or waived.
The Court then went on to uphold the Probate Court’s finding that Sharlene signed the agreement voluntarily, based in a large part on her admission that she did so. The Court
-10- explicitly declined to adopt the five-factor test for voluntariness in Mamot v. Mamot, 283 Neb. 659 (2012) because those factors tend to conflate the voluntariness and the conscionability of the agreement and the financial disclosures. Also, the Court pointed out that Sharlene did not argue in her brief how the Probate Court should have applied those factors.
Legal Principles:
1. The Legislature is presumed to intend its own typographical errors.
2. To invalidate a waiver of rights on death, the party seeking invalidation must prove they did not sign the agreement voluntarily and the agreement was unconscionable when executed and they neither received nor waived fair disclosure and they lacked sufficient knowledge of the property rights of their to-be spouse.
Discussion:
§ 30-2316(b) appears to contain an unintended typographical error because it has no connecting term at all. In this case that was the shortest path to affirming the trial court because Sharlene conceded she signed the premarital agreement voluntarily.
However, the opinion does not contain any discussion of the economic circumstances of the parties when they married that would allow us to examine whether the agreement was unconscionable when executed. It would appear likely that the result would have been the same, even if the Legislature had fixed § 30-2316.
-11- Marshall v. Marshall 298 Neb. 1 (2017)
TL;DR: The District Court should use a principled approach when dividing a personal injury settlement in a divorce, giving consideration for the personal injuries suffered by the victim and the economic injuries suffered by the marriage; no allocation in the settlement agreement, precise mathematical formula, or expert testimony is required.
Facts: This is a Petition for Further Review from a Court of Appeals opinion covered in last year’s materials. Brian and Amy were married in 1993. Amy suffered a serious stroke in 2003 and made a claim against Merck, who manufactured the drug Vioxx, and who she believed was responsible for the stroke. The couple settled the claim with Merck for a net of $330,000, including Brian’s derivative claim.
The couple spent $85,000 to pay off their mortgage, $95,000 to remodel their home, $33,000 to purchase 1/3 of a business, and Brian put $20,000 into a bank account, which he spent during the divorce. The record does not indicate where the couple spent the other $100,000.
The District Court applied Parde v. Parde, 258 Neb. 101 (1999) to determine how to divide the Merck settlement proceeds. The Court found that the failure of the settlement agreement to allocate the payment among claims for lost wages, pain and suffering, etc., was not fatal, as it found that Amy had suffered so greatly that the entire amount of the proceeds would not compensate her for her future pain, suffering, disfigurement, and disability. In dividing the marital estate, the District Court essentially credited Amy with the traceable portion of the settlement proceeds that were invested in the marital home, and deducted this figure from the value of the marital home after awarding it to Amy. The District Court also averaged the parties’ two positions on Brian’s income and awarded alimony.
Brian appealed and the Court of Appeals reversed, holding that Amy had not met her burden of proof that any portion of the settlement was non-marital. The Court of Appeals decision turned on (1) the lack of allocation either in the settlement agreement or in other evidence, and (2) the fact that the marital estate suffered a larger loss than the entire settlement. The Court of Appeals also re-determined Brian’s income and vacated the alimony award to be reconsidered on remand. The Supreme Court granted Amy’s Petition for Further Review.
Holdings:
The Supreme Court reversed the Court of Appeals’ decision on the division of property, finding that Amy had met her burden of proof. The Court reasoned that Parde does not require a specific allocation in the settlement agreement, nor a mathematical formula, nor an expert to allocate the settlement. Rather, the Court stated that the parties must
-12- present some evidence of the nature of the loss to allow the Trial Court to determine if the loss is personal to the victim, or a monetary loss to the marriage.
Here, the Supreme Court indicated it was clear that neither Amy nor the marital estate were fully compensated for their losses by the settlement, and it would be grossly unfair to allocate the entire settlement to one or the other. Further, the Supreme Court clarified Parde to rule that the settlement agreement need not categorize the nature of the compensation, and the parties need not present expert testimony. Rather, the Court held that Parde simply requires some competent evidence as to the nature of and underlying reasons for the compensation. Further, the Court rejected the notion that any specific mathematical allocation is required.
The Supreme Court did not believe the District Court had abused its discretion in effectively awarding more than ½ of the settlement proceeds to Amy, and it also indorsed the practice of recognizing and tracing the settlement award into assets when evidence will allow it.
The Supreme Court also reversed the Court of Appeals’ decision on the child support and alimony issues, so the entire decision of the District Court was affirmed.
Legal Principles:
1. Parde does not require a specific mathematical formula to allocate a personal injury settlement or award between the marital estate and non-marital personal damages.
2. The settlement agreement need not characterize the award, so long as the District Court receives competent evidence of the nature of the award and justification for it.
3. The District Court should use a principled approach in allocating the award between the marital estate and the injured party giving due regard for the damages of each, and recognizing that the award may not fully compensate either.
4. The District Court may trace a portion of the award that has already been spent and credit that portion if it has been invested in an asset to be awarded to one of the parties.
Discussion:
This opinion also discusses a procedural hiccup in filing a Petition for Further Review. Amy filed a Petition for Further Review and a supporting Memorandum Brief within 30 days of the release of the Court of Appeals opinion, as required by Neb. Ct. R. App. P. § 2-102(F)(1). Brian did not file his own Petition within the 30-day time limit. Instead, after the Supreme Court granted further review, Brian filed a brief opposing Amy’s assignments of error, and raising new assignments of error. The Court deemed Brian’s submission untimely and only considered Amy’s assignments of error on further review.
-13- Osantowski v. Osantowski 298 Neb. 339 (2017)
TL;DR: District Court has broad discretion to deduct premarital crops, but must exercise it uniformly and carefully; crops are not traceable as a whole like a herd of cattle.
Facts:
Brian and Dori were married in September of 2011, separated in May of 2014, and Dori filed for divorce in June of 2014. Trial was held in early 2016. Brian had an established farming operation with two of his brothers prior to the marriage, and he owned an undivided 1/3 interest in four parcels which totaled 360 acres.
During the marriage, Brian and Dori purchased another 1/3 interest in two separate parcels totaling 320 acres, but those interests were encumbered at the time of trial.
Brian hired an accountant to value his unharvested and stored crops on the date of the marriage, and at the time of trial. The accountant opined the crops were worth slightly more than $1 million on the date of the marriage, and about $444,000 on the date of trial.
The District Court did not give Brian a setoff for the value of his premarital crops because he had sold them during the marriage, and comingled the proceeds with the sales proceeds from marital crops. The District Court also declined to treat the premarital crops like a premarital cattle herd and trace it as if it was a single asset. The District Court reasoned that a herd of cattle is similar to land in that it is self-sustaining and income-producing, but crops are an end product which are liquidated on a short- term basis.
The District Court therefore ordered Brian to pay Dori an equalization payment of $680,000 which was about ½ of what it determined to be the marital estate. Brian appealed, assigning as error (1) the failure to set off premarital property from the marital estate, (2) the failure to set off the premarital value of stored and growing crops, (3) using inconsistent valuation dates, and making mathematical errors, and (4) dividing the marital estate inequitably considering the short-term duration of the marriage and large premarital contributions Brian made.
Holdings:
The Supreme Court modified the District Court’s characterization of Brian’s pre- marital crops which were growing and in storage. It accepted Brian’s accountant’s testimony as being accurate because it was supported by crop insurance reports, tax returns, balance sheets, and sales receipts. The Court assigned a value of just over $1 million to the pre-marital crops.
-14- The Supreme Court declined to adopt Brian’s suggested rule that crops be treated the same as cattle under Schafer v. Shafer, 16 Neb.App. 170 (2007). It reasoned that crops were more similar to equipment, which is not traceable as a single entity under Brozek v. Brozek, 292 Neb. 681 (2016).
The Supreme Court distinguished its holding with Brozek, where premarital crops were not credited because (1) Brozek was a long-term marriage and this was a 31-month marriage, (2) Brian was able to value the pre-marital asset with a high degree of precision, and (3) the pre-marital asset in this case was a large portion (87%) of the marital estate, whereas in Brozek, the pre-marital asset was less significant.
The Supreme Court further modified the District Court’s order which double-counted a check for $78,000 and the equipment that the check was used to purchase. And the Court ruled that the District Court abused its discretion by valuing the crops at separation in March, but Brian’s bank account in May (which contained the proceeds of certain crops that had been liquidated). In so holding, the Court determined that the dual date was not rationally related to the property composing the marital estate.
The Supreme Court also made a large number of corrections to the District Court’s division of property, including allocating assets that were not mentioned in the Decree, finding plain error in the debt value on certain loans, correcting mathematical errors, and deducting the reduction in Brian’s premarital debts during the marriage.
After re-constituting the balance sheet, the Supreme Court reduced the equalization payment to $261,000. It declined to adopt Brian’s argument that Dori should receive 1/3 of the marital estate, or less.
Legal Principles:
1. Trial Courts are to be given significant discretion when dividing farm assets, provided that the discretion is exercised uniformly, i.e., if pre-marital un-harvested crops are set off, then un-harvested crops on the valuation date should be a marital asset.
2. Despite this, crops are not like a herd of cattle, and cannot be traceable as a single entity.
3. The proponent bears the burden of proof to value and trace the proceeds of the premarital crops.
4. A setoff for pre-marital crops is more likely in a short-term marriage where they have a significant value than in a long-term marriage where their value is smaller in comparison to the marital estate.
Discussion:
This is one of the more rigorous modifications of a trial court decision that I have seen. Not only did the Supreme Court reverse the District Court on the core issue, but it also
-15- re-evaluated dozens of smaller decisions and corrected mathematical errors up and down the balance sheet. Credit should be given to counsel for preparing a record that allowed the Court to do this.
At the same time, the opinion discussed a number of errors which were argued but not assigned. This is a tactic that the Court can use to avoid addressing an issue if it wants to do so. This is a reminder to be careful to separately assign each error that you claim the District Court made under a separate heading, and separately argue each one in your brief.
-16- Whilde v. Whilde 298 Neb. 473 (2017)
TL;DR: In Loco Parentis is transitory, not permanent, and can be abandoned; attempts to blame the biological parent for the lack of contact are unlikely to work.
Facts:
Margaret and Hannah were in a relationship from 1999 to 2010. They changed their names so that their last names would match. They may have participated in a commitment ceremony, but they did not marry. Hannah gave birth to a baby girl via artificial insemination, and the biological father’s rights were terminated in Texas. Margaret testified that she planned to adopt the child, but she did not do so.
The relationship ended, and Hannah moved to Otoe County where her parents lived. Margaret initiated custody litigation in Texas, and the Texas Court entered an Order which effectively gave Hannah custody and awarded Margaret parenting time. Margaret then moved to Nebraska, then back to Texas, then experienced some mental health problems and was hospitalized in New York.
After Margaret moved away from Nebraska, Hannah began to restrict Margaret’s parenting time with the consent of the District Court. Margaret’s time was reduced to “supervised” telephone calls of 15 minutes. Margaret contended that Hannah prevented even this nominal amount of access to the child. By the time of trial, Margaret had received no meaningful contact in a couple of years.
The District Court found that Margaret had shown she met the criteria for “in loco parentis” status at the outset, but that she had abandoned it prior to trial. Even though Margaret had largely recovered from the issues that placed her in the hospital, the District Court found it was not in the child’s best interest to continue to have a relationship with Margaret, and it granted her no rights of custody or visitation and determined she had no further financial obligation to the child.
Margaret appealed, assigning as error (1) the finding that the in loco parentis relationship had been severed, (2) that the severance occurred due to events in Margaret’s life, (3) that it did not grant Margaret any rights of custody, and (4) that it suspended Margaret’s contact as a discovery sanction.
Holdings:
The Supreme Court held that the District Court did not suspend Margaret’s visitation as a discovery sanction. Rather, it found that she had failed to turn over records concerning her treatment, and that created a safety issue for the child. The Court determined that visitation would be suspended until the records were turned over so that the safety issue could be addressed.
-17- The Supreme Court agreed with the District Court that the temporary Texas Order was akin to a Nebraska Order finding Margaret had in loco parentis status with the child, and that the facts supported that conclusion at the time the Order was made. However, the Supreme Court also determined that prior to the 2016 trial, circumstances had changed such that Margaret was no longer assuming the obligations incident to the parental relationship.
Finally, the Supreme Court rejected Margaret’s argument that Hannah was to blame for the lack of contact with the Child. The Court reasoned that Hannah’s actions were justified in light of Margaret’s mental health issues, and that Margaret’s efforts appear to have been focused on attempts to contact or exercise visitation, and not attempts to perform obligations incident to the parental relationship such as offering to provide financial support for the child.
Legal Principles:
1. The in loco parentis status is transitory, not permanent, and it can be abandoned by a parent’s own conduct.
2. To maintain the status of in loco parentis, a parent must do something more than attempt to have contact with or exercise visitation with a child; they must attempt to perform the obligations incident to a parental relationship which includes attempting to provide financial support.
Sidenote:
It appears that immediately after winning at trial, Hannah filed a Petition to change the child’s name in Otoe County. She did not provide notice to Meghan, and testified at the hearing that she was the only parent of the child. The District Court granted the request and changed the child’s name. More than 30 days later, but still during the Cour’ts term, Meghan filed a Motion to Vacate due in part to the lack of notice. The Motion was denied. In the companion case, In re: Name Change of Whilde, 298 Neb. 510 (2017), the Nebraska Supreme Court affirmed, holding that Meghan was not entitled to notice as her rights had been effectively terminated.
-18- State o.b.o. Mariah B. and Renee B. v. Kyle B. 298 Neb. 759 (2018)
TL;DR: Child support obligor was in willful contempt because he could not rebut the statutory presumption of willfulness based on nonpayment; Obligor’s vague and conclusory statements were not enough to meet his burden to prove he could not perform the purge plan ordered by the Court.
Facts:
Kyle was the subject of a Child Support Order from a proceeding where he failed to respond to Requests for Admissions about his earning capacity, did not attend the final hearing, and where the evidence offered at the hearing supported the calculation adopted by the Referee. He did not pay any of the support as ordered.
The State cited Kyle for contempt. He was found to be indigent and counsel was appointed for him. At the contempt hearing, he testified in a conclusory fashion that he was unemployed and applying for three jobs per week but he refused to provide details. He also claimed he was disabled, couldn’t read, and had back and neck problems.
The District Court found Kyle in willful contempt, and that he had the ability to pay the support as ordered. The Court imposed a suspended 60-day sentence that would remain suspended so long as Kyle made timely payments of $230 per month on current child support and $100 per month on the arrearages. If Kyle fell behind and was arrested, he could purge himself and be released upon payment of $1,000. The Court did not make an explicit finding that Kyle had the ability to pay the purge amount.
Kyle appealed, assigning as error (1) the finding of contempt, (2) the sanction was unreasonable and punitive, and (3) that he could not perform the purge plan.
Holdings:
The Supreme Court affirmed the finding of willful contempt, finding that the State was entitled to a presumption of contempt as soon as it offered the certified payment history, and when Kyle did not offer sufficient evidence to rebut the presumption. Further, the Court reasoned that Kyle’s testimony was evasive and he had not complied with the Order to bring tax returns and wage statements to the hearing, and the Court could have drawn a negative inference from that failure.
The Supreme Court also rejected Kyle’s argument that the purge plan was punitive. The Court did reason that a past ability to comply with an order does not show a present ability to purge the contempt. But it said past failure to comply, coupled with unpersuasive or unsupported claims of present inability is sufficient to show ability to comply with the purge plan. Further, the Court reiterated the rule in Sickler v. Sickler that the contemnor bears the burden to prove they cannot comply with a purge plan.
-19- Legal Principles:
1. 42-358(3) creates a legal presumption of willful contempt when the State introduces certified payment histories demonstrating that the obligor is more than one month behind on the obligation.
2. The presumption can be rebutted by some kind of evidence that circumstances beyond the payor’s control have intervened since the child support order was entered such that payment is now impossible.
3. When a purge order requires payment of money, the sum required to purge oneself of contempt must be within the contemnor’s ability to pay within the time period provided in the order. A present inability to comply with a purge order is a defense, not to the contempt, but to the sanction of incarceration. Contemnors in civil contempt must carry the keys to their jail cells in their own pockets.
-20- Jennifer T. v. Lindsay P. 298 Neb. 800 (2018)
TL;DR: A District Court’s Order granting a consent to adoption and staying a custody proceeding pending the outcome of an adoption are not final appealable orders because they do not affect a substantial right.
Facts:
This is another round of a case we covered last year, which was captioned In re: Adoption of Chase T, 295 Neb. 390 (2016). Lindsay and Jennifer were in a long-term relationship. Lindsay gave birth to Chase in 2010. They separated in 2012 and shared Chase equally.
Lindsay married Jessica in 2015. Jennifer filed suit for joint physical custody, alleging that she stood in loco parentis. One month later, Lindsay and Jessica filed a petition for step-parent adoption of Chase in County Court. Jennifer moved to intervene and sought to stay the adoption. The County Court conducted a hearing and overruled both motions. Jennifer appealed and the Supreme Court reversed, holding that the Consent of the District Court was required before the County Court could even hold the hearing on the Petition to Intervene or take any action in the Adoption case. Because the Consent of the District Court was not given, the County Court lacked jurisdiction to entertain the Motion to Intervene.
After remand, Jennifer sought to have the custody action in District Court proceed. Jessica (Lindsay’s wife) attempted to intervene in the District Court action, now asserting her own in loco parentis rights to Chase. Lindsay sought the consent of the District Court for the Adoption to proceed, and she further sought to stay the custody proceeding until after the County Court was finished with the adoption case. The District Court consented to the Adoption, denied Jessica’s Complaint to Intervene, and stayed the custody proceedings. Jennifer appealed, assigning that the District Court erred on both matters.
Specifically, Jennifer argued that without a prior determination of whether she has in loco parentis status, the County Court will probably deny her standing to intervene in the adoption, and if the County Court grants the adoption, her custody action will be moot. The Court pointed out that this argument assumes three people cannot have custody over a child.
Holdings:
The Supreme Court held that the Order granting consent to the adoption was not a final appealable order because it did not affect a substantial right. In so holding, it cited to several other cases where orders involving consents in adoption were not final because the consent issue by itself did not affect a substantial right of one of the parties.
-21- The Court pointed out that in each of the other cases involving consents for an adoption, the objecting party was permitted to participate in the proceedings – something that Jennifer has been denied here. But it pointed out that the Order which denied Jennifer permission to intervene in the Adoption is not under review here. The Court also pointed out that the District Court’s consent to the adoption is not a denial of Jennifer’s status as in loco parentis; it merely consents for the adoption to proceed in a separate court.
Secondly, the Court held that the order staying the custody proceedings was not a final appealable order because it did not affect a substantial right. The Court held that, assuming without deciding that the custody action would be moot if the adoption was granted, a substantial right would still not be affected by the possibility of mootness in the future.
Legal Principles:
1. When different state courts have concurrent original jurisdiction over the same subject matter, the Court whose power is first invoked by proper proceedings acquires jurisdiction to the exclusion of all tribunals to adjudicate the rights of the parties.
2. A District Court Order consenting to an adoption does not affect a substantial right because the adoption might ultimately be denied, rendering the consent moot. Thus this Order is not a final appealable order.
3. An order staying an action does not affect a substantial right based on the mere possibility that an adverse outcome in a related action may occur during the stay.
Discussion:
Although this has been a slow process, the Supreme Court has clearly given Jennifer, or someone standing in her shoes, some options. In its discussion, it pointed out that it has found the denial of a Complaint to Intervene may affect a substantial right, meaning that would be an appealable order. It has further hinted that Jennifer has a colorable claim that she should be allowed to intervene and be heard in the adoption case, and that intervention would be appropriate. Furthermore, it has suggested that even if the adoption is allowed to proceed, Jennifer might still be able to assert in loco parentis status and obtain parenting time. Unless the County Court grants Jennifer’s next Complaint to Intervene, I expect we will see this case on appeal at least a third time.
-22- Onstot v. Onstot 298 Neb. 897 (2018)
TL;DR: Alimony award under § 42-362 is affirmed; no offset is available for premarital equity when the owner can’t prove what the equity was worth; District Court still cannot automatically terminate alimony upon cohabitation.
Facts:
Mark and Maria were married in 1999 and filed for divorce in 2013. Trial occurred in 2016. Mark purchased a home in 1990 and made some improvements. He testified without corroborating evidence that he paid $58,000 for it, and it was worth $100,000 on the date of the marriage. There was no evidence of the mortgage balance on the date of the marriage. At the time of trial, the house appraised for $200,000, less a mortgage of $32,500. The District Court ordered Mark to pay Maria ½ of the equity, or $83,750 and refinance the remaining debt within 60 days after the Decree.
Maria had been diagnosed with a mood disorder with some transient psychotic features, paranoia, depression, anxiety, and post-traumatic stress disorder. She becomes very agitated, has hallucinations, and dissociates from reality. She has been hospitalized several times because her anxiety raises her blood pressure to dangerous levels and causes swelling of her tongue, tingling in her fingers, heaviness in her body, loss of voice, ringing in her ears, changes in her vision, and loss of coordination.
Maria filed Motions under § 42-362 requesting first appointment of a Guardian Ad- Litem, and second temporary support of $3,000 per month. The District Court awarded her $1,500 per month on a temporary basis and $700 per month in the final Decree, to continue as long as the mental illness continued. On a Motion for New Trial, the Court amended its alimony award to determine it would cease upon Maria’s cohabitation with a significant other.
Maria’s income at the time of trial was $3,400 from social security disability, railroad spousal benefits, and temporary alimony. Her monthly expenses were $3,700. Mark’s income was $3,100 after taxes from railroad retirement, and $750 from rental income, though there were some expenses associated with the rental income. His expenses were $3,900 but he admitted those expenses could be trimmed.
Mark appealed, assigning as error (1) the district court’s treatment of the house, and (2) awarding excessive alimony. Maria cross-appealed, assigning only the provision which would terminate her spousal support upon cohabitation with a significant other.
Holdings:
The Supreme Court affirmed the District Court’s determination that all of the equity in the marital home was marital, primarily because Mark testified to his opinion of value of the home at the time of the marriage ($100,000) but he did not testify to the balance
-23- of the mortgage. Without that information, it was impossible to determine whether any equity existed at the time of the marriage.
The Supreme Court found that the District Court abused its discretion in ordering Mark to refinance the mortgage within 60 days due to the diminution in his income by the alimony award and the fact that he was retired. It extended the time limit to 6 months.
The Court declined to review the temporary spousal support order because the Affidavits considered by the District Court were not marked and offered as evidence at the hearing, and were not included in the Bill of Exceptions.
The Court affirmed the $700 per month alimony obligation under § 42-362, finding that it was an appropriate balance of the equities of a difficult situation, following a long-term marriage, with a disabled spouse who could not work.
Finally, the Court vacated the provision in the Decree which would automatically terminate alimony upon cohabitation, reasoning that such a provision is prohibited by Else v. Else, 219 Neb. 878 (1985).
Legal Principles:
1. Alimony under § 42-262 is appropriate when a spouse suffers from a mental illness that renders them unable to work.
2. To receive credit for premarital equity in a home, a party must show what the equity is worth, which would include evidence of the value of the home and any debt secured by it.
3. A Decree entered by the Court after trial may not automatically terminate alimony upon cohabitation.
-24- Tilson v. Tilson 299 Neb. 64 (2018)
TL;DR: A final order requires resolution of all issues before the Court.
Facts:
Jayson filed a Complaint for Dissolution of his marriage to Erica in 2014. The Court awarded temporary custody of the children to Erica’s mother, Kimberly. It allowed Kimberly to intervene to file a Complaint seeking grandparent visitation and custody of the children. Kimberly and her husband filed but did not serve the Complaint.
Jayson then filed a Motion to Dismiss his Complaint. The next morning, Kimberly filed a Praecipe for Summons to be served at a hearing scheduled to occur later that morning. Service was accomplished. A hearing was held that morning at which Jayson’s attorney withdrew the Motion to Dismiss. The Court then issued a consent Decree one month later, which maintained custody of the children with Kimberly.
More than one year later, Jayson filed a Complaint which sought to vacate the Decree because it was void, and also a writ of habeas corpus to return the children to him, or alternatively for a modification of the Decree. Jayson’s theory was that the Decree was void because the action stood as dismissed when his Motion to Dismiss was filed. After this was filed, then Jayson filed another “Motion for Declaratory Relief or Temporary Suspension of Implementation and Enforcement of Decree, Temporary Custody, Temporary Child Support, Temporary Restraining Orders,” which the Court referred to as “Filing 14.” In two separate orders, the Court first overruled the Motion to Vacate, and then in a second order, overruled all parts of the requested relief in “Filing 14,” but did not take any action on the underlying Complaint.
Jayson appealed within 30 days of the second order, but more than 30 days after entry of the first order. During the appeal, the rest of the underlying Complaint was resolved. Jayson’s sole assignment of error was that the District Court should have declared the Decree of Dissolution void.
Holdings:
The Supreme Court dismissed the appeal for lack of a final order, as the District Court had not ruled on Jayson’s request for a writ of habeas corpus, nor had it disposed of his request to modify the Decree (which it had set for trial). Furthermore, the Court reasoned that the Motion which had been denied only pertained to requests for temporary relief.
Jayson argued that an Order denying a Motion to Vacate is, by itself, a final order. The Court acknowledged cases holding that, but it indicated if that was the case, the Motion to Vacate was denied more than 30 days prior to the notice of appeal, and the notice was only timely as to the Court’s second order.
-25- Legal Principles:
1. See TL;DR, above.
-26- Fetherkile v. Fetherkile 299 Neb. 76 (2018)
TL;DR: A companion case for child support which found the Husband to be the father of all three children is res judicata as to their paternity, even when both parties testify in the divorce that another man is the father of one child; Husband should have filed a Motion to disestablish paternity in the companion case under § 43-1412.01.
Facts:
Brandon and Jessica married in 2010 and separated in 2013. Jessica filed for divorce in 2014; trial was held in 2016. Two children were born before the marriage and one during the marriage. Jessica’s Complaint alleged that Brandon was the father of all three children. Brandon disputed whether he was the father of the oldest child (born prior to marriage) and requested genetic testing.
While the divorce was pending, Jessica secured a child support order in a different case in the same court. That order was based on a stipulation of the parties and found that Brandon had acknowledged paternity of all three children.
At trial on the divorce, Jessica requested that child support continue as set in the other case, but she admitted that Brandon was not the biological father of the oldest child. It does not appear that the genetic testing was ever performed.
The District Court dissolved the marriage and ordered Brandon to continue to pay child support as set out in the other case. Brandon appealed, assigning as error (1) the District Court did not attach a child support worksheet to the Decree, (2) the District Court ordered child support based on the other case, (3) finding that the oldest child was Brandon’s child, (4) determining custody and parenting time with the oldest child, (5) dividing three exemptions, and (6) the division of debt.
Holdings:
The Supreme Court determined that the stipulated order in the companion case was res judicata as to paternity of the oldest child because the Court was a court of competent jurisdiction, the order was a final judgment, the judgment was on the merits, and it was between the same parties.
Since the issue of paternity was res judicata, an attempt to vacate that judgment in a different proceeding is an improper collateral attack on the judgment, since a judgment is only subject to collateral attack if it was void, for example, for lack of jurisdiction.
Finally, the Court held that Brandon’s due process rights were not violated because he should have (and presumably still can) file a Motion to disestablish paternity under the caption of the companion case, as allowed by § 43-1412.01.
-27- Because of the finding that paternity of the oldest child was res judicata, the Supreme Court affirmed the remainder of the custody order, allocation of tax exemptions, and parenting time. The Court also affirmed the division of debt.
Legal Principles:
1. An action to establish paternity of child support, when brought separately from a divorce case will be res judicata as to paternity of the children involved once a final order is made.
2. A valid final order is not subject to collateral attack, and can only be attacked directly by a Motion to vacate or modify it, or by the statutory remedy in this case to disestablish paternity under § 43-1412.01.
-28- Connolly v. Connolly 299 Neb. 103 (2018)
TL;DR: A Court may award alimony in a Decree of Dissolution even if the parties are legally separated and their Decree of Legal Separation provides for no alimony; further, alimony in a Decree of Legal Separation may be modified without the need to show a material change in circumstances.
Facts:
Valerie and Monte were married in 1974 and Valerie filed a Petition for Legal Separation in 2012. Valerie and Monte used the same lawyer, agreed to a Decree of Legal Separation, and waived a final hearing. The Decree of Legal Separation provided that neither party would receive alimony. At the time of the legal separation, neither party was able to work due to medical issues.
In 2015, Valerie filed a Motion to amend the Complaint to a Complaint for Dissolution of Marriage. Valerie filed an Answer requesting the marital home be sold (as contemplated by the legal separation decree), Monte pay for health insurance or spousal support and attorney’s fees.
The District Court ordered the home sold and divided the few remaining assets. It ordered Monte to pay alimony which equaled the amount of Valerie’s insurance premium. But the District Court found that, although it had the authority to revisit the issue of alimony, Valerie would have to show a change in circumstances had occurred (which she had not done).
Valerie appealed, assigning as error the District Court’s requirement that she show a change in circumstances, or alternatively, the District Court’s conclusion that she had not done so. Monte asserted assignments of error in his Appellee’s brief, but did not style it as a cross appeal, so the Court did not consider his errors.
Holdings:
The Supreme Court held that modification of alimony which was awarded in a decree of legal separation does not require a change in circumstances to constitute good cause. And since the operative pleading was a divorce, the District Court was required to consider only the factors in § 42-365 and nothing else.
Nonetheless, when reviewing the District Court’s alimony award through the lens of § 42-365, the Supreme Court affirmed it, finding it not to be an abuse of discretion.
Legal Principles:
-29- 1. The prohibition against modifying a decree of dissolution to provide alimony when none was awarded in the original decree applies only to dissolution cases, and not to legal separation cases. Pendleton v. Pendleton, 242 Neb. 675 (1993).
2. Alimony awarded in a Decree of Legal Separation may be modified without a showing of a material change in circumstances.
-30- Becher v. Becher 299 Neb. 206 (2018)
TL;DR: The findings of a court-appointed referee are subject to a multifaceted standard of review: factual findings are generally given the same treatment as a jury verdict; recommendations and conclusions are given no deference; findings and conclusions on child support and spousal support are given no deference; and the District Court has an independent obligation to safeguard the children in its review of any recommended parenting plan or custodial arrangement.
Facts:
Mark and Sonia were married in 1992 and Sonia filed for divorce in 2013. They agreed under § 25-1129 to have the divorce tried under a court-appointed referee. Trial lasted 14 days. After trial, both parties took exception to the referee’s report, but Mark withdrew his exceptions. The Court considered Sonia’s exceptions to the referee’s report. The District Court adopted the referee’s report in part, but made modifications. Both parties appealed.
The Court of Appeals generally held that the District Court was required to make findings that explicitly determined that a referee’s findings were clearly against the weight of the evidence before setting aside or modifying the referee’s report.
In a separate case, while the appeal was pending, both parties filed contempt applications against each other. Those applications were heard, and both parties appealed the order finding them both in contempt. That separate appeal was consolidated with Mark’s and Sonia’s Petitions for Further Review of the Court of Appeals’ decision.
Holdings:
The Court assumed that a Chapter 25 referee could preside over a dissolution action because both parties had stipulated so. But it questioned whether this was in fact authorized by our statutes when nothing clearly authorizes it.
The Court held that the District Court was required to give deference to the referee’s factual findings, treating them the same as a special verdict, but that no deference was owed to the referee’s conclusions or recommendations. Factual findings should be treated like a jury verdict, meaning they should not be set aside unless they are clearly against the weight of the evidence. However, because § 25-1131 does not require the District Court to make explicit factual findings, the District Court may implicitly find that the referee’s findings are against the clear weight of the evidence.
But dealing with issues of child support and spousal support, the Court held that under § 43-1613, the District Court owes a child support referee no deference, and is to enter judgment based on the court’s own determination.
-31- And, in dealing with child custody issues, the Court held that the referee’s factual findings are given the weight of a special verdict, his recommendations are given no deference, and additionally, the Court must exercise independent review to determine whether the Parenting Plan is in the best interests of the children.
The Court concluded its remarks about this three-tier standard by commenting:
“This multiplicity of review standards counsels against using Chapter 25 referees routinely in dissolution actions. And it may explain why 130 years have passed since the last reported decision documenting its use.”
The Supreme Court determined that, because Mark withdrew his exceptions to the referee’s report, he had waived any objections to issues where the District Court agreed with the referee.
The Supreme Court affirmed the District Court’s changes to the referee’s report concerning two gifts that Sonia received from her family, finding that the District Court did not abuse its discretion in substituting its own findings for the findings of the referee.
The Supreme Court reversed the District Court’s re-valuing one of Mark’s business interests because it found this amounted to a re-trying of the issue when the referee’s report was not clearly against the weight of the evidence. Similarly, the Supreme Court also reversed the District Court’s decision to change the value of the personal property awarded to each party, as this was a factual determination by the referee.
However, But the Supreme Court affirmed the District Court’s modification of the value of another business when the District Court determined that the referee had double- counted $150,000 of debt associated with the business.
The Supreme Court affirmed minor modifications that the District Court made to the referee’s proposed parenting plan, holding that they were appropriate, and that the District Court appropriately exercised its responsibility to safeguard the best interest of the children.
The Supreme Court affirmed the District Court’s modifications to the referee’s recommendations on child support and alimony because it found those recommendations were entitled to no deference.
Finally, the Supreme Court determined that Mark had not accepted the benefits of the judgment, however, by transferring one property to Sonia, refinancing the debt, and by her selling it to a third party, he was equitably estopped from arguing on appeal that Sonia should not have been awarded the property.
Legal Principles:
-32- 1. A Chapter 25 referee might be usable in a divorce case if both parties agree, however, that use is impaired by the complicated standard by which the District Court must review his or her recommendations.
2. Factual findings are reviewed like a jury verdict, meaning that they will only be set aside if clearly contrary to the evidence, however, conclusions and recommendations are given no deference, nor are any findings related to child support or spousal support, and furthermore, the Court has additional responsibilities to safeguard the best interest of the children which cannot be delegated to the referee.
3. It is possible to collaterally estop oneself from taking a particular position on appeal by complying with the Decree (as opposed to superseding the judgment) if the other party relies on it to their detriment.
Discussion:
This case makes it clear that under the current law, the use of a court-appointed referee is probably not very helpful. First, on the things that count, the referee receives very little deference. Second, the District Court has the power to change the referee’s findings without having the benefit of observing the witnesses and, where appropriate, asking its own questions. Thirdly, a party must take exception to every possible problem before the District Court in order to preserve the issue for appeal. Finally, the issues on appeal tend to center on the District Court’s treatment of the referee’s report, rather than whether the referee’s report reached the legally correct result in the first place.
-33- State o.b.o. State of Indiana and Fernando L., v. Rogelio L. 299 Neb. 329 (2018)
TL;DR: Subsequently-born children means a child born or adopted after entry of the original child support order.
Facts:
This was an interstate IV-D action for a mother and child who lived in Indiana. In 2010 the District Court set Rogelio’s child support at $388 per month for his son Fernando. Rogelio had two other children at the time of the 2010 order, and those children were considered in the Order. One of those children died in 2012, and then two more were born. In 2016, Rogelio petitioned to reduce his child support.
A hearing was held before the child support referee, where Rogelio did not produce any tax returns or pay statements and instead testified that he is paid $10 per hour in cash and pays no taxes. The referee recommended a modest reduction of Rogelio’s child support. Rogelio took exception, and the District Court dismissed his application, finding that he was not entitled to relief. In doing so, the District Court mistakenly assumed that all of Rogelio’s other children were younger than Fernando, and treated them all as subsequently-born. Rogelio appealed.
Holdings:
The Supreme Court held that two of Rogelio’s other children were subsequently born (meaning that his duty to support them will not justify a decrease in support). But one child’s birth pre-dated the 2010 order, and should be considered. The Supreme Court remanded to the District Court to consider his obligation to this child.
But the Supreme Court rejected Rogilio’s argument that the child support calculation worksheet should deduct income taxes when he admitted he doesn’t pay taxes. The Court considered that Rogilio provided no tax returns, pay stubs, or other documents to substantiate his income and potential tax liability, and accordingly, no tax should be deducted.
Legal Principles:
1. “Subsequent children” as used in Neb. Ct. R. § 4-220 means children born or adopted after entry of the last support order.
2. Taxes should not be deducted from a party’s income based on mere speculation, especially if they fail to provide documentary proof of their income.
-34- Carlson v. Carlson 299 Neb. 526 (2018)
TL;DR: The Supreme Court does not like using declaratory judgment actions when they can be avoided; District Court and Supreme Court interpreted an ambiguous Decree to create a mandatory post-majority support obligation; a post-majority child support provision is only modifiable in the case of fraud or gross inequity, or if the agreement creating the obligation allows it to be modified.
Facts:
Mark and Karen married in 1994 and divorced in 1998. They had three children at the time of the divorce. The parties went to an attorney mediator to prepare a Decree and Property Settlement Agreement. Neither was represented by independent counsel. Although they were both physicians, Karen had been out of the workforce since the children were born, and both were concerned about her prospects for re-employment. For reasons that nobody can fully explain, they agreed to a provision for post-majority child support.
The mediated Decree and Property Settlement Agreement contained standard terminology for child support of three children. In a different place, the Property Settlement Agreement said the following:
(4) Support Past Age 19: A child will not be determined to be emancipated and child support may continue past age 19 in the following circumstances:
a. If a child attends college or vocational training, child support may continue until age 27 or graduation from college, trade school, or graduate school, whichever occurs first. (The child must be regularly attending college (enrolled in 12 or more credit hours of course work per semester) or a vocational school. (However, the parties intend to allow some flexibility in the child’s college attendance, therefore a child may have up to two (2) semester[s] of nonattendance at school, not including summer vacations, without being understood to be emancipated.[)]
When the oldest child turned 19, Mark lowered his child support to the amount prescribed for two children. Karen filed an application for contempt. At the hearing on the contempt application, the Court expressed doubt that anyone could be found to be in willful violation of the above language.
Karen filed an Amended Complaint seeking declaratory relief to interpret the Decree and Property Settlement Agreement to mean that post-majority support was mandatory. Mark filed a Counterclaim, seeking declaratory relief that post-majority
-35- support was discretionary, or alternatively, he sought an order modifying his post- majority obligation.
After trial, the District Court found the Decree and Property Settlement Agreement to be ambiguous and interpreted the documents to mean that Mark was obligated to pay post-majority child support for any child regularly attending college, trade school, or graduate school, until the child attained the age of 27 or graduated, whichever first occurred. Because the Court felt the document was ambiguous, it considered parol evidence offered by the parties about their intent when signing the Agreement.
The District Court also denied Mark’s application to modify the obligation, holding that he was required to plead and prove a fraud or gross inequity. Mark appealed, assigning as error (1) the District Court’s finding that the Decree and Property Settlement Agreement was ambiguous, (2) its interpretation of the Decree and Property Settlement Agreement, and (3) the District Court’s refusal to reach the merits of Mark’s Complaint to Modify due to the lack of an allegation of fraud or gross inequity.
Holdings:
The Supreme Court expressed doubt as to whether a declaratory judgment action was an appropriate way to interpret a Decree. But because both parties sought declaratory relief, it assumed so without deciding the issue.
The Supreme Court also found that the parties’ intent was irrelevant, even if the Decree and Property Settlement Agreement were ambiguous because the contract they formed was transformed into a judgment when it was approved by the District Court.
Reaching the merits of the issue, the Supreme Court agreed that the documents were ambiguous, but found that the language stating child support “may” continue actually creates an affirmative obligation for Mark to pay it.
The Court also determined that, unless a provision for possible modification is provided for in the agreement itself, a post-majority child support obligation can only be modified in the case of fraud or gross inequity, which was not alleged here.
Legal Principles:
1. The intent of the parties is irrelevant when interpreting a judgment.
2. A post-majority child support obligation is not modifiable except in the case of fraud or gross inequity.
Discussion:
This case should serve as a warning to others that no relief will be provided to a party who voluntarily assumes an obligation that the Court could not have ordered in the first place. At the same time, it is a signal of the dangers of preparing and submitting a
-36- judgment to the Court when only one legal professional has had the opportunity to review it. Even if the parties are going to mediate a property settlement agreement, it is probably in their best interest to have independent counsel review it before submitting it to the Court.
-37- Westwood v. Darnell 299 Neb. 612 (2018)
TL;DR: Retirement funds are presumed to be marital, even if used to pay off joint debt, and until the proponent proves otherwise; evidence is required of the amount of the tax consequence (not mere speculation) to assess damages for refusal to sign a joint income tax return.
Facts:
Jennifer and Cheryl married in 2011 and separated in 2015. Shortly before separation, Jennifer withdrew $75,000 from her retirement account and used it to pay off joint debts and the debts for their cars. Cheryl refused to sign a joint tax return with Jennifer in the year of the retirement withdrawal.
The District Court divided the marital estate equally, without making any adjustment for the $75,000 retirement withdrawal. Jennifer appealed, essentially assigning as error that the retirement withdrawal should have been considered her nonmarital property.
Holdings:
The Supreme Court affirmed, holding that nothing about the retirement withdrawal compels its treatment as non-marital property. The Supreme Court reasoned that, while gifts and inheritances are presumed to be non-marital, retirement funds are presumed to be marital until shown otherwise.
The Supreme Court also affirmed the District Court’s decision not to penalize Cheryl for refusing to sign a joint tax return, due to lack of proof of the consequences.
Legal Principles:
1. Retirement funds are presumed to be marital until proven otherwise.
2. The District Court requires some proof as to the adverse consequences of a spouse’s unreasonable refusal to sign a joint income tax return before it can assess damages under Bock v. Dalbey, 283 Neb. 994 (2012).
-38-
Nebraska Court of Appeals Cases May 16, 2017 to April 24, 2018
-39- Mohammed v. Rojas 24 Neb.App. 810 (2017)
TL;DR: District Court order is affirmed which found no change in circumstances when a mother started receiving public assistance in another state.
Facts:
Mohammed and Rohas were married in 2001 and divorced in Arizona in 2011. They had two children, and the Arizona Decree contained a downward deviation to $0 for Mohammed’s child support obligation. Rojas then moved to California, where she started receiving public assistance. Mohammed moved to Nebraska.
In 2014, California requested that Nebraska’s IV-D unit seek a modification of the Decree to recoup the TANF benefits being paid to Rojas. The child support referee received evidence by affidavit showing that Rojas had no earned income, and that Mohammed earned $9.00 per hour working 26 to 27 hours per week. The evidence also showed that Mohammed had re-married, had three subsequently born biological children, and that his wife had two children from other relationships.
The referee found a chance of circumstances and increased Mohammed’s support to $89 per month. Mohammed took exception to the recommendation, and the District Court modified it to find there was no material change in circumstances. The State of Nebraska appealed, assigning as error (1) failure to find a material change in circumstances, and (2) failure to adopt the referee’s recommendations.
Holdings:
The Court of Appeals, in a divided panel, held that even if the receipt of public assistance and another state becoming an interested party was a change in circumstances, the State did not prove that Rojas was continuing to receive TANF at the time of trial, so it upheld the District Court’s decision.
Judge Bishop wrote a comprehensive dissent, arguing that a change in circumstances was shown, and the District Court should have adopted the referee’s findings.
-40- State o.b.o. Lockwood v. Laue 24 Neb.App. 909 (2017)
TL;DR: Referee’s finding that the payor was not in willful contempt was adopted by the District Court and affirmed; the District Court has discretion as to whether it will consider additional evidence at a hearing on an exception to the referee’s recommendation.
Facts:
The District Court ordered Lockwood to pay child support of $50 per month in July of 2014. Lockwood stopped paying in May of 2015, and the State brought a contempt action in December of 2015. At the hearing, the State offered a certified payment record, which the referee found created a rebuttable presumption that Lockwood was in willful contempt.
Lockwood testified, detailing a history of being in and out of jail, several jobs, medical issues, financial troubles, and living in a motel. She was seeing her psychiatrist regularly to stabilize her medication that she took for severe social anxiety and schizoaffective disorder. She was working with a nonprofit to try to find stable employment and establish a budget. She had submitted applications to 12 businesses and described the interviews she had attended. She did not have a drivers’ license because it had been suspended for nonpayment of support.
The referee issued a recommendation finding that Lockwood had made significant efforts to find employment, and the State had not met its burden to prove willful disobedience by clear and convincing evidence. The State took exception to the report. Before the District Court, the State attempted to offer additional evidence. The District Court received, provisionally, the additional evidence but then refused to consider it, and agreed with the recommendations of the referee. The District Court dismissed the contempt application. The State appealed, assigning as error (1) the failure to find Lockwood in contempt, and (2) the refusal to allow additional evidence at the exception hearing.
Holdings:
The Court of Appeals held that it is within the discretion of the District Court to determine whether it will accept additional evidence at an exception hearing, as § 43- 1613 contemplates that a further hearing will be held before the District Court for final disposition. Ultimately, the Court concluded that the District Court did not err when it refused to consider the additional evidence.
On the merits of the issue, the Court summarily affirmed the District Court’s decision to adopt the referee’s recommendations and find that Lockwood was unable to pay child support, and therefore not in contempt of court.
-41- Legal Principles:
1. The District Court has inherent discretion to determine whether it will accept additional evidence at an exception hearing.
2. At the exception hearing, the District Court has the authority to accept or reject any or all of the provisions in the referee’s report.
-42- Courtney v. Jimenez 25 Neb.App. 75 (2017)
TL;DR: District Court was affirmed when it vacated a domestic abuse protection order on a motion filed more than five days after service of the ex parte order.
Facts:
Courtney obtained an ex parte domestic abuse protection order against Jimenez. Jimenez did not request a hearing within 5 days, and the ex parte order became permanent. On her application, Courtney indicated that she and Jimenez had a three- year old child together, that there was a pending custody case, and that she had an existing protection order that was about to expire.
Courtney alleged that one week prior, Jimenez sent a text message “about our daughter and death,” which she took as a death threat. Six months prior, Courtney alleged that Jimenez told their mediator that “the protection order would be over soon and he’ll be able to handle this himself,” which Courtney said caused her to be afraid. Finally, Courtney reported that she feared Jimenez would be agitated or provoked because she had discussed the text message with the county attorney and sought to have Jimenez arrested.
About 45 days after service, Jimenez filed a “Motion to Dismiss” the protection order which the District Court construed as a Motion to Vacate. In effect, Jimenez argued that the petition did not state a claim for a protection order. At a hearing, Courtney’s counsel argued that any defects in the petition could be supplemented with testimony, but the District Court responded that the testimony could only address matters which were raised in the petition. The District Court agreed that the petition did not state a claim and it vacated the protection order. The District Court invited Courtney to either re-file the petition and make more allegations, or to seek appropriate relief in the custody case. Courtney appealed, assigning as error that the District Court vacated the protection order.
On appeal, Courtney failed to request a bill of exceptions, then filed for multiple extensions of her brief, which extended the appeal past the natural expiration date of the protection order. Even though the Court of Appeals found that the appeal was moot, it reached the merits under the public interest exception to mootness because this issue had not been addressed before in the context of domestic abuse protection orders.
Holdings:
The Court of Appeals affirmed the District Court’s vacating of its prior order, reasoning that a District Court has the inherent power, independent of any statute, to vacate or modify its own orders during the term in which they were entered.
-43- Furthermore, the Court of Appeals held that the 5-day time limitation in the domestic abuse protection order statute was not akin to a statute of limitations for requesting a hearing, because such a mandatory limit is not central to the purpose of the statute.
Legal Principles:
1. A District Court has the inherent authority to vacate or modify its orders in the term during which they were entered.
2. With both harassment and domestic abuse protection orders, the 5-day period to request a hearing is not an absolute deadline similar to a statute of limitations, and courts may consider requests for hearing or requests to vacate the order which are filed after that time limitation has expired.
-44- Drabbels v. Drabbels 25 Neb.App. 102 (2017)
TL;DR: District Court calculated child support by including in the Husband’s income the value of employer-provided health insurance and retirement benefits; Court of Appeals reversed, holding that the Husband should not be charged with the income, nor receive a deduction for these employer-paid benefits.
Facts:
Darren and Michelle were married in 2009 and separated in 2014. They have one daughter who was born in 2013. Michelle filed for divorce in 2015, and trial was held in 2016.
Darren is an electrical lineman and a member of a union. The union arranges for substantial benefits to be paid by Darren’s employer on Darren’s behalf, including health insurance which costs almost $2,000 per month and retirement contributions of about $1,000 per month.
The District Court made decisions on custody, division of property, and support. The District Court appears to have calucated Darren’s gross income based on his hourly wage at a full-time rate, plus the employer-paid cost of health insurance. From this, the Court deducted portions for the health insurance premium for the child, and for a retirement contribution.
Both parties appealed the District Court’s treatment of their incomes for child support purposes.
Holdings:
The Court found that the District Court abused its discretion including the employer- paid health insurance premiums in Darren’s income, and then pro-rating the cost to insure the child between parents. The Court reasoned that doing this actually results in less support being owed than if the insurance premium is simply disregarded. The Court held that Darren’s income should be limited to his hourly wage at a full-time rate, and there should be no deduction or pro-rating of any health insurance premium.
The Court of Appeals found that the District Court did not abuse its discretion in refusing to consider overtime and safety awards that Darren might earn because there was no evidence about the frequency or predictability of these payments. And the Court declined to find an abuse of discretion in failing to separately count vacation, sick, and holiday pay as those are just substitutes for Darren’s hourly wage.
Finally, the Court of Appeals found that the District Court abused its discretion when it gave Darren a deduction for contributions to retirement accounts when he made none, and they were paid by the employer in addition to his hourly rate. At the same time,
-45- the Court of Appeals found no abuse of discretion in the District Court’s refusal to include the employer-paid contributions in Darren’s income, reasoning that these were not income because they were not immediately available for the payment of obligations, and that the retirement account itself was already divided as an asset in the divorce.
Legal Principles:
1. Employer-paid health insurance and retirement contributions are not includable in the income of a party for child support purposes.
2. If the employer pays 100% of a premium for health insurance or 100% of a retirement contribution, the employee should not receive any deduction for these payments, provided that they are properly excluded from the employee’s income.
-46- Knopik v. Hahn and Greenwood v. Hahn 25 Neb.App. 157 (2017)
TL;DR: Homeowners got into an argument with a neighbor over an unrestrained dog; sought and received a harassment protection order against the neighbor; Court of Appeals reversed holding that there was no proof of a series of acts over time.
Facts:
Abbie and Lance filed petitions to obtain harassment protection orders against Douglas. Abbie’s petition was filed on behalf of herself and her four year-old son. Abbie and Lance are engaged to each other. The District Court issued an ex parte order and Douglas requested a hearing.
At the hearing, Abbie testified that Hahn was walking his dog on the sidewalk in front of the house she shared with Lance. Abbie’s dog, who was not on a leash, came up to Douglas’ dog and the two dogs were sniffing each other. Abbie called her dog, to no avail, then grabbed her dog by the collar to lead him away. According to Abbie, Douglas leaned closely towards her and started yelling aggressively, threatening to sue her for not having her dog on a leash, and he called her a “bitch.” Abbie told Douglas to “get out of [her] face” and led her dog away.
Douglas followed Abbie onto her property and called her some more names. Lance then spoke up and told Douglas “You will not speak to my fiancée that way.” Douglas told Lance that the dog should be on a leash, to which Lance responded “Get your cats on a leash.” Douglas responded “I’m sick of your f-ing cocky attitude,” charged across the driveway toward Lance, grabbed him by the sweater, and punched him in the chest three times. A neighbor who was also present told them to knock it off. Douglas left.
The District Court found that Abbie and Lance had met their burden to show a course of conduct intended to intimidate them which served no useful purpose. Douglas appealed.
Holdings:
The Court of Appeals held that Douglas’ conduct, while unsavory, did not amount to a harassing “course of conduct” as defined by § 28-311.02(2)(b) because the statute requires a series of acts over a period of time, evidencing a continuity of purpose. Further, the Court pointed out that this statute is intended to address “stalking offenses.”
It concluded: “Although Hahn’s actions reflect a perhaps exaggerated response to an unrestrained dog, they do not constitute the type of stalking offense necessary to support issuance of a harassment protection order.”
Principles of Law:
-47- 1. A harassment protection order requires a series of acts over a period of time, evidencing a continuity of purpose.
-48- Schriner v. Schriner 25 Neb.App. 165 (2017)
TL;DR: In a 27-page opinion, the Court of Appeals affirmed the decision of the District Court in the fourth appeal filed by a pro-se party in a contentious case.
Facts:
Cecil and Sara were married in 2005 and divorced in 2014. They had two children together and Sara had two older children from a prior relationship. Cecil received custody and Sara received parenting time two evenings per week and alternating weekends. Sara appealed, and the Court of Appeals affirmed in an unpublished opinion.
While the appeal was pending, Sara filed a complaint to modify her parenting time, alleging generally that Cecil did not give her access to the children and would not do so during increased education-related commitments in the coming months. Cecil counterclaimed, alleging generally that Sara’s behavior was invasive, inappropriate, and not in the best interest of the children.
The Court of Appeals recites eleven (11) pages of facts, which state in summary that Sara has been relentless, constantly harassing Cecil over the children, keeping them past the drop-off time, being disruptive at appointments, acting out in public, and accusing Cecil of attempting to turn the children against her, while the evidence generally indicated that Cecil behaved appropriately.
After trial, the District Court eliminated Sara’s weekday parenting time, changed her weekends to end with a Monday morning drop-off at school, ordered Sara to attend an anger management class and counseling, restricted her participation in appointments, ordered the parties to provide names and contact information for “regular” paid daycare providers, and awarded Cecil $7,500 in attorney’s fees. Sara appealed, assigning as error the District Court having done each of these things.
Holding:
The Court of Appeals affirmed the District Court in all respects, and found that the facts justified permitting Cecil to take the children to routine appointments and notify Sara of the results by text message after the fact, and also that Cecil did not have to provide Sara with information that she couldn’t obtain herself from the children’s school or church.
-49- Roberts v. Roberts 25 Neb.App. 192 (2017)
TL;DR: Child support modification was partially reversed to (1) exclude alimony from the income of the recipient, (2) require an express justification for any deviation, and (3) make the award retroactive to the first day of the first month after filing.
Facts:
Keith and Diana were married in 1991 and divorced in 2014. Under the Decree, Diana had physical custody of the children, and Keith paid her child support based on gross monthly income of $12,281 per month, and alimony of $3,000 per month for 84 months.
Keith retired from his government job in 2015 and took a contractor position for the US Department of State which required him to live in government-paid housing in Turkey. He received a base salary of $11,333 per month, and was eligible for cost-of-living allowances and danger pay but he did not know how much either of these would be, nor how much the government paid for his housing. In addition, Keith started drawing on his federal retired pay, which grossed about $5,700 per month.
Diana filed her operative complaint seeking an increase in child support in 2016. She sought an income-based modification of support, an upward deviation due to increased expenses because Keith wasn’t able to exercise parenting time while living abroad, and attorney’s fees.
The District Court after trial increased Keith’s child support obligation, including an upward deviation which exceeded the amount shown on the additional support worksheet under Neb. Ct. R. § 4-203(C), but it declined to make the increase retroactive, and it declined to award fees. Keith appealed, arguing that the Court should not have granted Diana’s application to modify (even though the District Court used his worksheet). Diana cross-appealed, arguing that (1) the Court should have used her worksheet, (2) the increase should have been retroactive, and (3) she should have been awarded attorney’s fees.
Holdings:
The Court of Appeals held that the District Court did not abuse its discretion in refusing to include a value in Keith’s income for the free housing he receives because (1) the government pays it directly on his behalf, there was no evidence as to its value, and the decision about whether to include the value of in-kind benefits at all is within the discretion of the trial court.
The Court found that the District Court abused its discretion including the alimony received by Diana in her income, as alimony is not to be considered income when calculating child support.
-50- The Court found no abuse of discretion in the District Court’s decision to continue to impute an earning capacity to Diana in addition to her portion of Keith’s federal retirement annuity. Diana felt that one should replace the other, but the Court of Appeals found that there was no evidence that Diana’s earning capacity had changed from the amount stipulated in the original Decree.
The Court of Appeals reversed the District Court’s use of the § 4-203(C) optional worksheet because after excluding Diana’s alimony, the combined net monthly income will be below $15,000 and the worksheet will not apply. It also held that, on remand, if the District Court wished to have an upward deviation from the Guideline amount, it must either complete Worksheet 5 or specifically state the reasons for the deviation in its Order.
The Court of Appeals found that the District Court abused its discretion in declining to make the increase retroactive without providing a reason.
Finally, the Court affirmed the District Court’s order that each party pay their own attorney’s fees.
Legal Principles:
1. The Nebraska Supreme Court has favored a flexible approach to determining a parent’s income for child support purposes because such actions are, despite the guidelines, equitable in nature.
2. Alimony received is not income for the purposes of child support.
3. Without a clearly articulated justification, any deviation from the Child Support Guidelines is an abuse of discretion; the District Court must either complete Worksheet 5 or specifically state the reasons for the deviation in its order.
4. Absent equities to the contrary, modification of a child support order should be done retroactively to the first day of the month following filing of the application for modification.
-51- State o.b.o. Slingsby v. Slingsby & Oxford 25 Neb.App. 239 (2017)
TL;DR: Court of Appeals affirmed a District Court decision which followed the wishes of a nearly 16 year-old boy to live with his father when factors besides the child’s wishes may have otherwise favored maintaining custody with the mother.
Facts:
Devin and Jessie gave birth to Hunter in 2000, and in 2002 they reached a stipulation regarding his custody. Jessie was awarded custody and Devin received reasonable parenting time. In 2006, the Court modified the operative order to provide Devin with alternating weekends and holidays and one month over the summer.
Devin filed an Application to Modify in 2016, alleging primarily that Devin (who was about to turn 16) wanted to live with him. At trial, the parties adduced evidence that the parties communicated relatively well, including Jessie’s husband and Devin’s long- term girlfriend, Hunter was struggling in school, both parents were concerned, but Jessie was more “hands on” than Devin. The evidence also showed that Hunter shared a lot of interests with his father, he enjoyed hunting, trapping, fishing, participating in 4-H, showing cattle, and learning about agriculture. Since Devin lived in Ansley (about one hour away from Jessie in Kearney) and since he owned his own business and was engaged in these types of activities, this was an attractive environment for the teenage son. Devin and Hunter also felt that Hunter would benefit from the school programming and smaller class size available to students at Ansley.
The District Court interviewed Hunter in camera, and heard the testimony of numerous witnesses, teachers, the school principal, the parties, and their spouses/significant others. The District Court found both parents were fit, and that although other factors may weigh slightly in favor of maintaining the existing parenting schedule, that Hunter had demonstrated the appropriate maturity to make his own decision, and that decision was enough to swing the result. The District Court awarded the parties joint legal custody, with Devin receiving physical custody, and Jessie receiving the same parenting time that Devin used to receive. Jessie appealed, challenging the finding that Devin was fit, and the change in custody.
Holdings:
The Court of Appeals affirmed the District Court’s decision in all respects.
Legal Principles:
1. While the wishes of a child are not controlling, if a child is of sufficient age and has expressed an intelligent preference, the child’s preference is entitled to consideration.
-52- Berndt v. Berndt 25 Neb.App. 272 (2017)
TL;DR: Trial Court declined to find a change in circumstances based on desire on an 11 year-old child and other factors; Court of Appeals reversed and ordered the parties to share the children equally.
Facts:
Tonya and Scott were divorced in 2012. The divorce decree provided they would receive joint legal and physical custody but that the children would primarily reside with Scott. Tonya had parenting time every weekend, except the third weekend of each month, they alternated holidays, and Tonya received all of summer break except for 4 weeks.
At the time of the divorce, Tonya was living in Kimball, Nebraska and Scott was living near Lakeside, Nebraska (about 2 hours apart). Since the Decree, Tonya had moved several times but she and her subsequent husband bought a home in Gordon, Nebraska, where the children were now attending school, she was not working and was available to exercise alternating weeks of parenting time, the children were involved in numerous activities in Gordon, and spent quite a bit of time traveling to Scott’s home (36 miles away) and the older child who was 11 at the time of trial wanted to spend more time with her mother.
The District Court found that there was no material change in circumstances, and the only change in circumstances was the older daughter’s desire, which it did not believe was sufficient to change custody. Tonya appealed, arguing that the District Court erred when it failed to find a material change in circumstances and failed to award the parties alternating weeks of parenting time.
Holdings:
The Court of Appeals found that the factors recited above, when combined with the child’s desire, amounted to a material change in circumstances, and it found it was in the best interest of the children to switch to a week-on-week-off schedule. It reversed and remanded with instructions to amend the parenting plan accordingly.
-53- Simms v. Friel & Friel 25 Neb.App. 640 (2018)
TL;DR: Temporary grandparent visitation is allowed, but the District Court must make the findings required by § 43-1802(2).
Facts:
Karen was Jeffrey’s former mother-in-law. Jeffrey was married to Karen’s daughter. Jeffrey and Karen’s daughter were physically separated, going through a divorce, when Karen’s daughter died suddenly and unexpectedly.
Three months later, Karen filed a Complaint to establish Grandparent Visitation with Jeffrey’s three children under § 43-1802, alleging that Jeffrey had refused to allow her to have any contact since their mother’s death, despite previous frequent contact. Jeffrey filed an Answer generally denying the allegations in the Complaint.
Karen filed a Motion for the Court to appoint an expert witness. At the hearing, Karen made an oral Motion for “some temporary visitation.” The Court directed the parties to submit Affidavits which were not included in the record. After reviewing the Affidavits, the Court appointed an expert witness and in a separate order granted Karen visitation one day per month from 9:00 a.m. to 5:00 p.m. from November of 2016 to May of 2017. Jeffrey appealed, assigning as error (1) the grant of temporary grandparent visitation time, and (2) the Court’s failure to make required statutory findings before ordering any grandparent visitation time.
Holdings:
First, the Court of Appeals determined that the order under review affected a substantial right of Jeffrey, and was thus a final, appealable order.
Second, the Court found that the Order was moot by the time the appeal was decided because the last day of grandparent visitation had passed. Nonetheless, the Court went on to discuss the Order based on the public interest exception to the mootness doctrine.
Thirdly, the Court found that District Courts do have the inherent authority to order temporary grandparent visitation, even absent an express statutory provision authorizing it because they have the inherent power to do all things necessary for the administration of justice within the scope of their jurisdiction.
Finally, the Court indicated that if a District Court grants grandparent visitation (temporary or otherwise) it must make specific findings that there is or has been a significant beneficial relationship between grandparent and the child, it is in the best interest of the child that the relationship continue, and such visitation will not adversely interefere with the parent-child relationship.
-54-
Metzler v. Metzler 25 Neb.App. 757 (2018)
TL;DR: A Nebraksa Court has in rem jurisdiction to dissolve a marriage when the Defendant is a nonresident, but it cannot divide property or create personal obligations unless it somehow obtains personal jurisdiction over the defendant.
Facts:
David and Mary married in 2000, and David filed a pro se Complaint for divorce in 2016 using preprinted forms for self-represented litigants. Mary filed a Motion to Dismiss, alleging that the children have never resided in Nebraska, and there was a controlling child custody matter pending in British Columbia.
The District Court dismissed David’s Complaint, reasoning “the issues of child custody and support are so integrated in the subject matter of the case that Nebraska is not the most convenient forum, nor the appropriate forum.” David appealed, assigning as error the dismissal of his Complaint.
Holdings:
The Court of Appeals explained that Nebraska has adopted the doctrine of “divisible divorce,” meaning that a state court may have jurisdiction over the marriage to dissolve it, but it may also lack personal jurisdiction to adjudicate personal matters such as support, alimony, and the division of assets. This divisibility concept stems from the fact that a dissolution is generally considered an in rem proceeding, where one spouse’s domicile creates the necessary minimum contacts for the courts of a State to have jurisdiction over the thing of the marriage. This outcome is not diminished by the absence of a nonresident spouse.
The Court reasoned, on the other hand, that personal jurisdiction over the nonresident spouse is necessary to adjudicate personal matters that are incidences of the marriage, such as child custody, parenting time, child support, and division of property and debts. And to acquire personal jurisdiction over a nonresident, the party seeking to exercise it must satisfy Nebraska’s long-arm statute. Of course, our long-arm statute allows personal jurisdiction over a nonresident to the full extent permitted by the U.S. Constitution, so every personal jurisdiction question is necessarily a Constitutional question. Generally, personal jurisdiction over a nonresident can be established when that person purposely avails themselves of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The benchmark is whether the defendant’s minimum contacts are such that they should reasonably anticipate being haled into court here.
-55- Since Mary and the children never had any kind of contact with Nebraska whatsoever, they could not be subject to personal jurisdiction here, and insofar as the District Court’s dismissal of David’s Complaint sought to dismiss his requests for joint physical custody and division of assets and debts, that portion of the dismissal was proper.
The Court did, however, hold that it was erroneous to dismiss the Complaint outright because it met the requirements for a Complaint for Dissolution of Marriage under § 42-353. It held that dismissal should only be granted in the case where the Complaint on its face shows that there is some insuperable bar to relief.
Legal Principles:
1. Under the divisible divorce doctrine, a Nebraska Court may dissolve a marriage, even if it lacks personal jurisdiction over the Defendant.
2. In such instance, the Court’s jurisdiction is in rem only, and it may not divide property or deal with personal obligations that the parties may have to each other.
-56- Schmeidler v. Schmeidler 25 Neb.App. 802 (2018)
TL;DR: District Court made minor adjustments to a parenting plan in a high conflict relationship and struck a “safety plan” because it was overly broad and inappropriately delegated the Court’s responsibility to the mother.
Facts:
Benjamin and Jessica were married in 2011 and Benjamin filed for divorce in 2016. They had one daughter together. Trial was held in 2017. After trial, the District Court awarded Jessica legal and physical custody of the child, and imposed some serious restrictions on Benjamin’s parenting time including a prohibition on the consumption of alcohol, requirements that Benjamin self-report any violations, and automatic forfeiture and/or supervision of parenting time in the event that Benjamin consumed alcohol during or before his parenting time. Benjamin appealed, assigning as error (1) the District Court’s failure to adopt his proposed parenting plan, (2) adopting Jessica’s proposed Plan, (3) delegating authority to Jessica to unilaterally suspend his time, and (4) the division of marital assets.
Holdings:
The Court of Appeals found no abuse of discretion in the District Court’s decision to adopt Jessica’s proposed parenting plan over Benjamin’s. The District Court had determined that Jessica was a more credible witness, and that determination is entitled to deference. In addition, the District Court concluded Jessica had been the primary parent during the marriage, and that Benjamin had a history of domestic violence, and abuses of alcohol that placed the child in danger. Finally, the Court found that the parties have a long history of conflict rendering joint decision-making impossible.
Having affirmed the award of custody to Jessica, the Court went on to discuss Benjamin’s specific objections to Jessica’s plan, including contact with family members and a requirement that Benjamin provide all of the transportation. Given the apparent distance between the parties, the Court found it was an abuse of discretion to require Benjamin to provide all of the transportation, given his limited parenting time, particularly on Wednesday evenings. The Court modified the Plan to require the parties meet halfway on Wednesdays for exchanges.
The Court also found that the District Court abused its discretion in awarding Benjamin only two weeks of summer parenting time and modified that award to be 6 weeks.
The Court completely removed the District Court’s safety plan which empowered Jessica to terminate Benjamin’s parenting time if she suspected that he was drinking (a violation of the non-delegation doctrine) or that required Benjamin to self-report all alcohol consumption to Jessica (an overly broad requirement which was not narrowly
-57- tailored to the best interest of the child). Although the Court reasoned that restrictions on activities during parenting time (such as a “no drinking” provision where the Court decides the sanction) are permissible, they are also an extreme remedy, reserved for the most severe of cases. In this case, particularly given the history of conflict between the parties, the Court of Appeals decided that the District Court abused its discretion in adopting the safety plan, and it struck the plan in its entirey.
The Court of Appeals also made other adjustments to the division of personal property including the value of a non-marital Shop-Vac and some fencing supplies.
Legal Principles:
1. The District Court’s determinations of credibility are entitled to deference because the District Court saw and observed the witnesses and is entitled to accept one version of the facts over another.
2. While the District Court has broad discretion over parenting time, it should not arrange transportation so that one party bears an undue burden, especially when coupled with a short window of parenting time.
3. A District Court has the exclusive responsibility to determine what is in the child’s best interest, and it cannot delegate that responsibility to one of the parties in exercising one of its core functions by authorizing one of the parties to decide whether parenting time should be forfeited.
-58-