Becher v. Becher, s. S-16-054

• Decision Date: 09 March 2018
• Docket Number: Nos. S-16-054,S-16-793,s. S-16-054
• Parties: Sonia BECHER, appellee and cross-appellant, v. Mark A. BECHER, appellant and cross-appellee.
• Court: Nebraska Supreme Court

299 Neb. 206
908 N.W.2d 12

Sonia BECHER, appellee and cross-appellant,
v.
Mark A. BECHER, appellant and cross-appellee.

Nos. S-16-054
S-16-793

Supreme Court of Nebraska.

Filed March 9, 2018.

David P. Kyker, Lincoln, for appellant in Nos. S-16-054 and S-16-793.

Brad Sipp for appellant in No. S-16-054.

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Kelch, and Funke, JJ.

Cassel, J.

I. INTRODUCTION

These two appeals, which have been consolidated in this court, stem from marital dissolution proceedings. One challenged the district court’s decree, and is before us on further review of a Nebraska Court of Appeals’ decision.¹ Primarily, we disagree with the Court of Appeals’ determination that a district court must state specific findings in order to set aside or modify a referee’s report authorized by chapter 25 of the Nebraska Revised Statutes (Chapter 25)² as clearly against the weight of the evidence. In this appeal, we affirm in part, and in part reverse and remand with directions. The assigned errors in the second appeal, flowing from contempt proceedings, lack merit. In that appeal, we affirm.

II. BACKGROUND

1. APPEAL NO . S-16-054

Mark A. Becher and Sonia Becher were married for 21 years before Sonia filed a complaint for dissolution of marriage in 2013. Because they could not agree to the valuation and division of their vast marital estate or to the award of child custody, child support, alimony, and attorney fees and costs, they agreed to have these issues tried before a court-appointed referee. The consent cited § 25-1129 et seq.

908 N.W.2d 20

(a) District Court Proceedings

After a 14-day trial, the referee submitted a report describing its findings of fact on uncontested issues and its "analysis and recommendations" which are set forth in more detail below. Both parties initially filed exceptions to the report, but Mark later withdrew his. Therefore, only Sonia’s exceptions and the voluminous record produced at trial were submitted to the district court on review of the referee’s report.

The district court entered a final decree in December 2015 in which it adopted some of the referee’s factual findings and recommendations and set forth its own findings and conclusions on other issues. Specific findings and conclusions are discussed in our analysis.

(b) Appeal to Court of Appeals

Mark timely appealed and challenged the district court’s review and consideration of the referee’s report. He assigned error to certain findings of the court regarding the classification, valuation, and division of the parties’ assets and debts; custody and parenting time; child support; alimony; and attorney fees. Sonia cross-appealed and assigned error to the court’s allocation of holiday parenting time and its failure to classify certain property as nonmarital.

The Court of Appeals found several of Mark’s assigned errors had been waived pursuant to the acceptance of benefits doctrine and for failure to take exception to the referee’s report. After concluding that the majority of the issues were preserved for appeal, it addressed the remaining assigned errors concerning the district court’s revisions of the referee’s report.

The Court of Appeals reviewed Nebraska precedents which generally provided that a referee’s findings are treated like a special verdict and can be set aside only where it is " ‘clearly against the weight of the evidence.’ "³ However, the court also relied on a case from the District Court of Appeal of Florida⁴ to find that a trial court must explicitly determine that a referee’s findings are clearly against the weight of the evidence before setting aside or modifying a referee’s report. With this new standard, the Court of Appeals concluded that the district court failed to apply the correct standard of review. The Court of Appeals then vacated those portions of the decree where the district court made findings and conclusions that were inconsistent with the referee’s report and modified it to incorporate the findings and conclusions of the referee.⁵

We granted Mark’s and Sonia’s petitions for further review to address the correct standard of review owed to the findings and recommendations of court-appointed referees.

2. APPEAL NO . S-16-793

While the first appeal was pending before the Court of Appeals, Mark and Sonia each filed cross-motions for orders to show cause, alleging numerous violations of the district court’s decree. Because the parties contest only a few of the findings of

908 N.W.2d 21

contempt, only those allegations and findings relevant to this appeal are set forth.

Sonia alleged that Mark entered her residence uninvited, caused damage to the residence, and removed personal property that was not awarded to him under the decree. She further alleged that he repeatedly entered one of her commercial buildings without authorization, caused damage to the property, and removed property from the building that was not awarded to him under the decree.

Mark alleged that Sonia failed to deliver certain personal property awarded to him under the decree. At the hearing, Sonia admitted to having sold certain items awarded to Mark, but maintained that several of the listed items were actually awarded to her. She alleged that she did not have any of the other items of property.

The district court entered orders of contempt against both Mark and Sonia. The court did not make any findings as to whether Mark entered Sonia’s home or commercial building unauthorized, caused damage to the properties, or otherwise removed property from those locations. Rather, it disposed of these allegations with a blanket denial of all other relief requested. In its order of contempt against Sonia, the court found that she willfully and contumaciously failed to comply with the decree requiring she turn over all the property listed. Instead of ordering that she turn over the property, the court entered a judgment against Sonia and required that she pay $2,500 as "compensation for the property she did not turn over."

Mark timely appealed, and Sonia cross-appealed. We moved the appeal to our docket⁶ and consolidated the appeal with the appeal in case No. S-16-054 for oral argument and disposition.

III. ASSIGNMENTS OF ERROR

In appeal No. S-16-054, the dissolution proceeding, Mark assigns that the Court of Appeals erred in (1) finding that he waived his right to appeal the award of three commercial properties to Sonia, because he quitclaimed the deeds to Sonia in compliance with the district court’s decree; (2) adopting the referee’s determination of custody and parenting time instead of remanding the issues to consider new developments in the 18 months the appeal has been pending; and (3) not remanding for further hearing to conduct a complete accounting.

Sonia assigns that the Court of Appeals erred in (1) applying its standard of review and (2) concluding that the acceptance of benefits doctrine did not bar Mark’s appeal as it relates to the division of property.

In appeal No. S-16-793, the civil contempt proceeding, Mark assigns that the district court (1) erred in modifying its decree of dissolution while the appeal of the decree was pending, (2) abused its discretion in ordering Sonia to pay restitution for selling or retaining personal property awarded to Mark in an amount less than the value of the property, and (3) abused its discretion and violated Mark’s right to due process in refusing to permit Mark to offer evidence or otherwise rebut Sonia’s evidence in support of her motion for contempt.

Sonia cross-appeals and assigns that the district court erred in failing to find Mark in contempt for (1) his unauthorized entry into Sonia’s home and the damage he caused while at the home and (2) his unauthorized entry into Sonia’s commercial

908 N.W.2d 22

building and the removal of property not awarded to him in the decree.

IV. ANALYSIS

1. STANDARD OF REVIEW OF CHAPTER 25 REFEREE’S REPORT

Sonia argues that the Court of Appeals incorrectly applied its standard of review, because it "took issue with the fact that the trial judge had not specifically stated the referee’s report

(in certain, limited respects) was ‘against the weight of the evidence.’ "⁷ We agree. In addressing this assignment of error, it is first necessary to clarify the standard of review owed to a court-appointed referee’s findings. Because the referee in this case additionally made findings and recommendations as to child custody, child support, and alimony, it is also necessary to discuss the effect of the child support referee statutes⁸ and the Parenting Act.⁹ This requires statutory interpretation. Therefore, we begin by recalling basic guiding principles of statutory interpretation.

Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.¹⁰ It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.¹¹

(a) District Court’s Standard of Review

(i) Chapter 25 Referee Statutes

Our civil procedure statutes have provided for trial by referee since Nebraska became a state.¹² But we have been unable to find a reported decision where this procedure has been used in a divorce case since 1888.¹³ Prior to the adoption of Nebraska’s no-fault divorce statute in 1972,¹⁴ our divorce statute stated that suits for divorce "shall be conducted in the same manner as other suits in courts of equity."¹⁵ But our current divorce statutes contain no such language. It is an open question whether the Legislature intended the Chapter 25 referee provisions to apply to a dissolution action. But even if doing so was error, it was one invited by the parties. Generally, a party cannot complain of error which the party has invited the court to commit.¹⁶ Thus, we assume that a Chapter 25 referee may be appointed in a...