Dobrovolny v. Dunning, 84-552

• Decision Date: 25 October 1985
• Docket Number: No. 84-552,84-552
• Citation: 375 N.W.2d 123,221 Neb. 67
• Parties: Marie A. DOBROVOLNY, Appellee, v. Gina C. DUNNING, Director, Nebraska Department of Social Services, and Nebraska Department of Social Services, Appellants.
• Court: Nebraska Supreme Court

Page 123

375 N.W.2d 123

221 Neb. 67

Marie A. DOBROVOLNY, Appellee, v. Gina C. DUNNING, Director, Nebraska Department of Social Services, and Nebraska Department of Social Services, Appellants.

No. 84-552.

Supreme Court of Nebraska.

Oct. 25, 1985.

Syllabus by the Court

1. Public Assistance: Proof. One seeking public assistance has the burden of proving entitlement to the benefits.

2. Administrative Law: Right to Counsel: Proof. If one chooses to represent himself or herself before a tribunal, one must accept the consequences of one's own failure to properly present sufficient evidence to sustain one's burden.

Paul L. Douglas, Atty. Gen., and Royce N. Harper, Lincoln, for appellants.

Jerom E. Janulewicz, Grand Island, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

KRIVOSHA, Chief Justice.

Gina C. Dunning, director, Nebraska Department of Social Services, and the Nebraska Department of Social Services appeal from a judgment entered by the district court for Hall County, Nebraska, which reversed a decision of the Department of Social Services which had found Marie A. Dobrovolny financially ineligible for public assistance benefits pursuant to Neb.Rev.Stat. §§ 68-1001 et seq. (Reissue 1981 & Cum.Supp.1984). The trial court remanded the matter to the Department of Social Services for further proceedings on the ground that the finding by the Department of Social Services that Dobrovolny was financially ineligible was not supported by competent, material, and substantial evidence. We believe that the trial court was in error, and for that reason we reverse and remand with directions to affirm the finding made by the Department of Social Services.

The Legislature of the State of Nebraska has adopted a series of statutes establishing a program known as assistance to the aged, blind, or disabled. See § 68-1001 (Cum.Supp.1984). Under the provisions of § 68-1001.01 (Reissue 1981), the Director of Social Services is authorized to promulgate rules and regulations providing for services to such persons. No issue is raised here by anyone that the regulations so promulgated by the director are in any manner unlawful or an improper delegation of legislative authority. We therefore accept the regulations as valid for purposes of this appeal. The record, sketchy as it is, indicates that Dobrovolny's eligibility, if any, is by reason of her being disabled and not because of blindness or age. The claim made by Dobrovolny was that the Department of Social Services had failed to establish her ineligibility by competent, material, and substantial evidence.

While, as we have already indicated, the record is somewhat sketchy, what we have before us appears to indicate that on July 7, 1983, Dobrovolny applied for public assistance benefits pursuant to the program of assistance to the aged, blind, or disabled. Her request was denied on July 21, 1983, and she appealed the decision to the director of the Department of Social Services pursuant to the provisions of § 68-1016 (Cum.Supp.1984). A hearing was held before a hearing examiner designated by the director on August 31, 1983. Dobrovolny appeared pro se. At the hearing, evidence was presented to the hearing officer indicating that on April 22, 1983, Dobrovolny, as grantor, had conveyed a parcel of real estate located in Boyd County, Nebraska, to her sister, Josephine Mahlendorf, for life, and the remainder to Dobrovolny's daughter, Donna Rae Dobrovolny. The evidence disclosed that the property had an assessed value of at least $17,630. Dobrovolny maintained that the conveyance was made because of the fact that she owed her sister $4,000 for moneys previously borrowed by the sister for Dobrovolny. She also maintained that her daughter had expended moneys over the years for Dobrovolny's benefit. In neither case, however, was there any evidence presented of the debts or any documents requiring Dobrovolny to repay the moneys loaned or advanced.

The evidence further disclosed that Dobrovolny also held title to some additional real estate in Boyd County in her name and her sister's name. This property had a value of at least $41,830. Dobrovolny maintained that she had acquired this land by inheritance, that it was her sister who actually owned the property, and that she had no real interest in it. She maintained that the property was placed in her name only to permit her to dispose of the land in the event of her sister's death.

The hearing officer found, based upon the evidence presented, that Dobrovolny had conveyed the parcel of ground valued at approximately $17,000 for the purpose of depriving herself of resources in order to qualify for public assistance and that, further, the property which she owned a one-half interest in had a value in excess of $1,500. For those reasons the hearing examiner determined that Dobrovolny was ineligible for benefits. The decision of the hearing officer was affirmed by the director on September 12, 1983, and it was from that order that Dobrovolny appealed to the district court.

The Nebraska Public Welfare Manual § IX-3422 (rev. July 1, 1982), then in effect, provided in part: "An applicant/client need not be entirely without resources to be eligible for assistance." The standard used in making that determination for a single individual is that the individual must not have available resources in excess of $1,500. If he or she is found to have more than $1,500 in available resources, the individual is rendered ineligible for benefits. Furthermore, Nebraska Public Welfare Manual § IX-3536 (rev. Apr. 1, 1981), then in effect, provided: "The potential sales value of all real property, other than the allowed exemption for the home, shall be determined and considered in computing the amount of the applicant's total available resources." And, finally, Nebraska Public Welfare Manual § IX-3320 (rev. Apr. 1, 1981), then in...