947 N.W.2d 694 (Neb. 2020), S-19-880, Braun v. Braun

Docket NºS-19-880.
Citation947 N.W.2d 694, 306 Neb. 890
Opinion JudgeStacy, J.
Party NameJennifer J. BRAUN, appellee, v. Corey L. BRAUN, appellant.
AttorneySterling T. Huff, P.C., L.L.O, for appellant. Jennifer J. Braun, pro se. On brief, Andrew W. Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O., Scottsbluff, for appellee.
Judge PanelHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Case DateAugust 21, 2020
CourtSupreme Court of Nebraska

Page 694

947 N.W.2d 694 (Neb. 2020)

306 Neb. 890

Jennifer J. BRAUN, appellee,

v.

Corey L. BRAUN, appellant.

No. S-19-880.

Supreme Court of Nebraska.

August 21, 2020.

Page 695

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1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

2. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below.

3. Parties: Jurisdiction. If necessary parties to a proceeding are absent, the district court has no jurisdiction to determine the controversy.

4. Parties: Words and Phrases. An indispensable party is one whose interest in the subject matter of the controversy is such that the controversy cannot be finally adjudicated without affecting the indispensable party's interest, or which is such that not to address the interest of the indispensable party would leave the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.

5. Divorce: Property Settlement Agreements: Final Orders. A decree is a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself.

6. Contempt: Words and Phrases. Willful disobedience is an essential element of civil contempt; "willful" means the violation was committed intentionally, with knowledge that the act violated the court order.

7. Words and Phrases: Appeal and Error. Willfulness is a factual determination to be reviewed for clear error.

[306 Neb. 891] 8. Contempt. In a civil contempt proceeding, for the sanction to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert punishment or, at any time, bring it to an end.

9. Contempt: Sentences. The sanction in a civil contempt proceeding is both remedial and coercive, and when a jail sentence is imposed as a sanction, the contemnor must carry the keys to their jail cells in their own pocket.

10. ____: ____ . A jail sanction in a civil contempt proceeding is conditioned upon the contemnor's continued noncompliance with the court order, and the purge plan must allow the contemnor to mitigate or avoid the sanction through compliance.

Appeal from the District Court for Sheridan County: Travis P. O'Gorman, Judge. Affirmed.

Sterling T. Huff, P.C., L.L.O, for appellant.

Jennifer J. Braun, pro se.

On brief, Andrew W. Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O., Scottsbluff, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

Corey L. Braun appeals from an order finding him in willful contempt of court for failing to hold his ex-wife, Jennifer J. Braun, harmless from joint mortgage debt on the marital home Corey was awarded in the decree. As a sanction, the court imposed a delayed jail sentence and a purge plan that allowed Corey to purge himself of contempt by either refinancing the mortgage in his own name by a date certain or selling the property. Finding no error, we affirm.

I. BACKGROUND

Corey and Jennifer were married in 2005. A child was born to the marriage in 2007, and in 2012, Jennifer filed for divorce. In the dissolution proceeding, the parties generally agreed on [306 Neb. 892] the equitable division of their assets and debts; a trial was held on all remaining issues.

1. DIVORCE DECREE

In February 2013, the court entered a decree dissolving the marriage. As relevant to the issues on appeal, the parties' marital home in Gordon, Nebraska, was valued at $112,000. The home was awarded to Corey by agreement of the parties, subject to the existing mortgage debt. The decree generally ordered each party to be responsible for the debts associated with the property they were awarded and to hold the other harmless from such debt. As relevant to the issues on appeal, the decree provided: "Debts: [Corey] agrees to hold [Jennifer] harmless from any debt associated with the property he has been awarded, including payment of attorneys fees should any contempt action arise from his failure to hold her harmless of these debts."

2. CONTEMPT PROCEEDINGS

On January 11, 2019, Jennifer filed what she captioned a "Complaint to Modify and for Contempt." This pleading alleged that Corey had willfully failed to hold her harmless from the mortgage debt on the home, and it asked that he be held in contempt of court. The pleading also sought to hold Corey in contempt of court for failing to pay court-ordered childcare expenses, and it requested a modification of Corey's child support obligation due to a material change in circumstances.

The court set trial on all matters for May 1, 2019. Both parties appeared with counsel and offered evidence. We summarize only that evidence pertaining to the hold harmless provision, as no error has been assigned to the trial court's rulings on child support or childcare expenses.

Page 698

(a) Jennifer's Testimony

Jennifer testified that after the decree was entered, she signed a quitclaim deed on the home, but her name was still [306 Neb. 893] on the mortgage note. Jennifer admitted she had not been required to make any mortgage payments on the home since the decree was entered, but she testified that Corey had failed to remain current on the mortgage and that his failure was adversely affecting her finances. She explained that she had received late notices and foreclosure notices from the mortgage company and that her credit report showed she was delinquent on the home mortgage.

Jennifer testified her credit score had historically been around 780 or 800, and in the summer of 2018 she had an application for a credit card rejected, which had not happened before. She checked her credit score and learned it had fallen to 620 or 640, despite the fact she was current on the only debts she had. She also testified she was unable to qualify for a loan to purchase a home because of her current credit score.

Jennifer testified she had repeatedly asked Corey to refinance the mortgage in his own name, but he told her he was not able to qualify for refinancing due to his previous bankruptcies and his low credit score. According to Jennifer, the mortgage company had not yet foreclosed on the home, but Corey had been "dancing around foreclosure." Jennifer testified the mortgage company had "set up multiple payment plans with him, he makes a couple payments, and then he stops making payments, and then he calls in and they make new payment arrangements, he'll make a couple payments, and then he fails. It's a cycle."

Jennifer believed the only way to protect her finances from Corey's chronic failure to keep the mortgage debt current was to get her name off the mortgage altogether. She asked that Corey be ordered to refinance the home in his name only and that if he was not able to refinance, he be ordered to sell the home.

(b) Corey's Testimony

Corey testified the balance on the mortgage note was close to $70,000, and he agreed that Jennifer remained obligated on that note. He testified that about a year earlier, he attempted [306 Neb. 894] to refinance the mortgage on the home but was unable to get a loan because of his credit score. He had not attempted to refinance recently, because his credit score had not improved.

Corey estimated the current value of the home was around $120,000 to $150,000, and he agreed he would be able to sell the home for more than is owed on the mortgage. Corey admitted that since 2018, he had been behind on the mortgage payments, but stated that a few months before trial he had arranged a new payment plan and was current on payments under that new plan. He testified the mortgage was still in arrears by about $4,900.

Corey did not want to sell the home, but he did not think it was possible for him to refinance the mortgage debt immediately. He testified he had obtained a good-paying job and expected to be able to keep making payments under the new payment plan, and he was hopeful that he could refinance the home "sooner [rather] than later."

Corey admitted the decree required him to hold Jennifer harmless from any debt associated with the home. And he generally understood the hold harmless provision meant that no harm should come to Jennifer as a result of the debts he was ordered to pay, including harm related to a reduction in her credit rating. But Corey generally testified that he did not think his delinquency on the mortgage had harmed Jennifer.

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3. TRIAL COURT'S ORDER

On May 16, 2019, the trial court entered an order ruling on all pending matters. As relevant to the contempt issues on appeal, the court expressly found that Corey had consistently failed to keep the mortgage current and that his conduct had resulted in financial damage to Jennifer in the form of damage to her credit.

The court described the "more difficult" question as whether Corey's conduct amounted to a violation of the hold harmless provision in the decree. The court framed the question as whether financial harm or injury,...

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3 practice notes
  • Hogan v. Hogan, 021221 NESC, S-20-254
    • United States
    • Nebraska Supreme Court of Nebraska
    • February 12, 2021
    ...with which an appellate court reaches a conclusion independent of the determination reached by the court below. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 ANALYSIS Brooke contends that the district court retained continuing exclusive jurisdiction to make child custody ......
  • Philmon v. Philmon, 091421 NECA, A-20-823
    • United States
    • Court of Appeals of Nebraska
    • September 14, 2021
    ...act violated the court order. Id. Willfulness is a factual determination to be reviewed for clear error. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020). Carlos contends that the trial court erred in finding that he willfully violated the decree, specifically al......
  • Evans v. Evans, 051121 NECA, A-20-739
    • United States
    • Nebraska Court of Appeals of Nebraska
    • May 11, 2021
    ...of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 ANALYSIS Contempt. Mike first assigns that the district court erred in finding him in contempt for failure to pay child ......
2 cases
  • Hogan v. Hogan, 021221 NESC, S-20-254
    • United States
    • Nebraska Supreme Court of Nebraska
    • February 12, 2021
    ...with which an appellate court reaches a conclusion independent of the determination reached by the court below. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 ANALYSIS Brooke contends that the district court retained continuing exclusive jurisdiction to make child custody ......
  • Evans v. Evans, 051121 NECA, A-20-739
    • United States
    • Nebraska Court of Appeals of Nebraska
    • May 11, 2021
    ...of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 ANALYSIS Contempt. Mike first assigns that the district court erred in finding him in contempt for failure to pay child ......

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