Drennen v. Drennen, s. 87-363

• Decision Date: 15 July 1988
• Docket Number: 87-730,Nos. 87-363,s. 87-363
• Citation: 426 N.W.2d 252,229 Neb. 204
• Parties: , 57 USLW 2115 Alice Marie DRENNEN, Appellant, v. Michael Harvy DRENNEN, Appellee. In re Interest of T.L.H., a Child Under 18 Years of Age. STATE of Nebraska, Appellant, v. Dennis Lee HUTSELL, Appellee.
• Court: Nebraska Supreme Court

Page 252

426 N.W.2d 252

229 Neb. 204, 57 USLW 2115

Alice Marie DRENNEN, Appellant, v. Michael Harvy DRENNEN, Appellee.

In re Interest of T.L.H., a Child Under 18 Years of Age.

STATE of Nebraska, Appellant, v. Dennis Lee HUTSELL, Appellee.

Nos. 87-363, 87-730.

Supreme Court of Nebraska.

July 15, 1988.

Syllabus by the Court

1. Constitutional Law: Trial: Appeal and Error. Constitutional requirements for the exercise of the judicial power must be met at all stages of adjudication, and not only on appeal, where the court is restricted to considerations of law, as well as the nature of the case as it has been shaped at the trial level.

2. Constitutional Law: Legislature. The Legislature may make a reasonable classification of persons, corporations, and property for purposes of legislation concerning them, but the classification must rest upon real differences of situation and circumstances surrounding the members of the class relative to the subject of legislation which render appropriate its enactment.

3. Judgments: Collateral Attack. A void judgment may be attacked at any time in the proceedings.

4. Constitutional Law: Statutes. Neb.Rev.Stat. §§ 43-1601 to 43-1607 (Cum.Supp.1986) are unconstitutional as violating Neb.Const. art. I, § 13; art. II, § 1; art. III, § 18; and art. V, §§ 1 and 9.

Robert M. Spire, Atty. Gen., and Royce N. Harper, Lincoln, and Ronald E. Bucher, Deputy Lancaster Co. Atty., for appellant Drennen.

Dennis R. Keefe, Lancaster County Public Defender, for appellee Drennen.

Michael G. Heavican, Lancaster Co. Atty., and Ronald E. Bucher, Deputy Lancaster Co. Atty., for appellant State.

James M. Kelley, Lincoln, for appellee Hutsell.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

GRANT, Justice.

These two cases, Drennen v. Drennen and In re Interest of T.L.H., State v. Hutsell, both on appeal from the district court for Lancaster County, have been consolidated for hearing in this court. In the Drennen case, a decree of dissolution of that marriage was rendered on January 16, 1986. Included in that decree was an order requiring Michael Harvy Drennen, respondent husband and appellee in No. 87-363, to pay $100 per month child support for each of two children. On October 2, 1986, pursuant to Neb.Rev.Stat. § 42-358(1) (Cum.Supp.1986), the district court, on its own motion, appointed the Lancaster County attorney to commence and prosecute contempt of court proceedings against Drennen for his failure to pay child support pursuant to the decree of dissolution. The district court order directed that appellee should appear before the "Honorable Jan Dutton, District Court Referee ... and bring with him his income tax returns for the past 3 years and his last 3 wage statements prior to hearing." This order was served on appellee Drennen.

The "District Court Referee" had been appointed pursuant to the provisions of Neb.Rev.Stat. §§ 43-1601 to 43-1607 (Cum.Supp.1986), hereinafter referred to as the Referee Act.

Appellee Drennen appeared before the referee on October 27, 1986, in response to the district court order. At that time he completed and filed a poverty affidavit and requested that an attorney be appointed to represent him. The referee told Drennen that she would "recommend the public defender be appointed to represent you." On October 28, a district court judge appointed the Lancaster County public defender to represent appellee. On December 3, Drennen appeared before the referee, with appointed counsel, and a hearing was held. After preliminary questions as to his residence, the deputy county attorney asked Drennen, "And are you the father of--?" At that point, Drennen's counsel instructed Drennen not to answer any more questions and to "claim Fifth Amendment grounds." The county attorney stated, "I'd offer this witness immunity in accordance with Chapter 42." The referee then stated, "Immunity will be granted to the witness." Further questioning then followed. At the conclusion of this hearing, the referee stated on the record:

Very well, the Court makes the following findings. First of all, that the Court does have jurisdiction over the parties and the subject matter....

....

Accordingly, it is the finding of the Court that the respondent has willfully and contumaciously failed to comply with the Court's judgment and order to pay child support herein; that the respondent is hereby found to be in willful and contumacious contempt of court.

The referee then asked if Drennen had any plan to "purge himself of said contempt of court." Drennen or his counsel did not offer any plan. The referee then stated, "Very well, Mr. Drennen, it has been the court finding, order and judgment that you are and have been found to be in willful contempt of court." The referee then ordered Drennen to appear before the district court judge "for sentencing and/or final disposition on this matter on January 8th, 198...." The referee signed an order on December 3, 1986, setting out the above findings.

On December 10, 1986, in the district court, Drennen filed a "Petition for Review and Motion to Dismiss," requesting the court to determine that §§ 43-1601 et seq. were unconstitutional, and to dismiss the order to show cause issued by the referee requiring Drennen to show to the referee reasons why he (Drennen) should not be held in contempt for not complying with the district court's support order.

A hearing was held on Drennen's pleading on December 23, 1986, in the district court. At this hearing, the deputy Lancaster County attorney appeared "as counsel for the State" representing Alice Marie Drennen, petitioner wife in the marriage dissolution case, and appellant herein. A representative of the Attorney General also appeared and acknowledged he had been notified of the case and the fact that constitutional issues were raised.

The parties stipulated as to the statutes in question, various federal regulations concerning child support, the Nebraska Supreme Court Child Support Rules, and the proceedings before the referee as set out above. No further evidence was adduced. On March 23, 1987, the district court rendered its order sustaining Drennen's petition for review and motion to dismiss, making various findings, and determining §§ 43-1601 et seq.

unconstitutional to the extent set out in the findings provided that nothing in this order shall prevent the child support referee from hearing child support cases assigned to the referee by a District Judge, making proposed findings of fact and recommendations to a District Judge as to how the case should be decided.

The district court concluded that the referee's order was without subject matter jurisdiction and that the Referee Act was unconstitutional as violating Neb. Const. art. II, § 1, and art. V, §§ 1 and 21.

Alice Marie Drennen has appealed, represented by the Lancaster County attorney and the Attorney General. On appeal, she assigns as error that the district court erred "in finding the child support referees were given full judicial powers and are therefore, unconstitutional as violating Article V, Sections 1 and 21 of the Nebraska Constitution"; that the court erred "in finding the contempt power is exclusively a judicial power"; that the court erred "in finding the Child Support Referee Act violates the separation of powers clause" found in Neb. Const. art. II, § 1; and that the court erred "in finding there is no rational basis for the disparity between treatment of IV-D and non IV-D cases."

Case No. 87-730 is the State of Nebraska, on behalf of a named minor child, v. Dennis Lee Hutsell, the adoptive father of the minor child. The record in that case shows that on June 24, 1985, defendant-appellee, Dennis Hutsell, was ordered by the district court, in a temporary consent support order, to pay $50 per month for the support of the minor child, who was a ward in the custody of the Nebraska Department of Social Services. The initial pleadings in this case are not in the record, but it was apparently filed by the State in an effort to require Dennis Hutsell to provide support for his adopted child, who had been made a ward of the State. On July 24, 1986, the Lancaster County attorney filed a motion requesting the district court "to review the Defendant's ability to increase child support payments...." On the same day, a notice of hearing was filed setting the motion "for hearing before the Honorable Jan Dutton...."

A hearing was held on August 6, 1986, before the referee. Hutsell appeared pro se. By "Referee's Findings and Order" filed August 6, the referee found that defendant "has equity in real estate of approximately $30,000.00 and a vehicle with equity of $2,500.00," and that "[r]espondent's child support be established on a permanent basis of $100.00 per month continuing under the provisions of the June 24, 1985 support order."

On August 11, 1986, an order was entered, stating, in part,

Evidence was submitted, and in consideration thereof, and upon the recommendation of the District Court Referee, the Court FINDS, ORDERS, ADJUDGES, AND DECREES:

1. The Court has jurisdiction over the defendant and the subject matter.

2. There has been a material change of circumstances since the entry of the Temporary Support Order on June 25, 1985.

3. The child support obligation shall be increased to $100 per month commencing September 1, 1986, and continuing thereafter until the child reaches age nineteen, marries, dies, becomes self-supporting, joins the Service, or until further order of the Court.

....

7.... [T]hat failure to comply with the provisions of this section be punishable by contempt.

This order was signed by the district court referee.

On March 13, 1987, in the same case, in the district court, Hutsell, as defendant and third-party plaintiff, filed an "Application for Declaratory Judgement, Application for Modification of Order," and for other relief. In this...