Freis v. Harvey

• Decision Date: 06 May 1997
• Docket Number: No. A-95-1302,A-95-1302
• Citation: 5 Neb.App. 679,563 N.W.2d 363
• Parties: George FREIS, Jr., Appellant, v. Mary Dean HARVEY, Director, Nebraska Department of Social Services, Appellee.
• Court: Nebraska Court of Appeals

Page 363

563 N.W.2d 363

5 Neb.App. 679

George FREIS, Jr., Appellant, v. Mary Dean HARVEY, Director, Nebraska Department of Social Services, Appellee.

No. A-95-1302.

Court of Appeals of Nebraska.

May 6, 1997.

Syllabus by the Court

1. Statutes: Appeal and Error. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; where the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged in to ascertain their meaning.

2. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language. Neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute.

3. Liens: Child Support. The cessation of a lien under Neb.Rev.Stat. 42-371(2) (Cum.Supp.1996) does not render a child support judgment dormant.

Robert F. Peterson, of Laughlin, Peterson & Lang, Omaha, for appellant.

Don Stenberg, Attorney General, and Royce N. Harper, Lincoln, for appellee.

HANNON, MUES, and INBODY, JJ.

MUES, Justice.

FACTS

George Freis, Jr., and Sheila Freis were divorced in 1961. At that time, Sheila was given custody of the couple's two children, and George was ordered to pay child support until each child reached the age of 21.

George and Sheila's youngest child reached age 21 on January 29, 1982.

From 1980 until 1995, George made no child support payments, and no attempts were made to collect these payments. On March 16, 1995, the Nebraska Department of Social Services (DSS), pursuant to the Income Withholding for Child Support Act (IWCSA), sent George a notice of intent to withhold income for accrued child support payments. George filed a request for a hearing before DSS to contest the income withholding. At the hearing, George argued that the judgment had become dormant and that DSS was therefore barred from attempting to collect the arrearages. Mary Dean Harvey, the DSS director, disagreed and found in favor of DSS. Pursuant to the Administrative Procedure Act, George appealed to the district court, which found: "It is quite clear that this statute [Neb.Rev.Stat. § 42-371(2) (Cum.Supp.1996) ] only applies to 'liens'. There is no statute of limitations applicable either to the child support order itself or to income withholding." The district court thus affirmed the decision of the DSS director. George now appeals that decision. We affirm.

STANDARD OF REVIEW

On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. Inner Harbour Hospitals v. State, 251 Neb. 793, 559 N.W.2d 487 (1997); Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996); Knowlton v. Harvey, 249 Neb. 693, 545 N.W.2d 434 (1996).

Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. In re Estate of Muchemore, 252 Neb. 119, 560 N.W.2d 477 (1997); County of Seward v. Andelt, 251 Neb. 713, 559 N.W.2d 465 (1997); Van Ackeren v. Nebraska Bd. of Parole, 251 Neb. 477, 558 N.W.2d 48 (1997); Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662 (1997).

ASSIGNMENT OF ERROR

George's sole assignment of error is that the district court erred in finding that the income withholding procedure under Neb.Rev.Stat. § 43-1701 et seq. (Reissue 1993 & Cum.Supp.1994) was not barred by the provisions of § 42-371(2).

ANALYSIS

Section 42-371, addressing, inter alia, child support judgments under Neb.Rev.Stat. §§ 42-347 to 42-379 (Reissue 1993 & Cum.Supp.1994), provides in pertinent part:

(1) All judgments and orders for payment of money shall be liens, as in other actions, upon real property and any personal property registered with any county office and may be enforced or collected by execution and the means authorized for collection of money judgments....

2) Child support and spousal support judgments shall cease to be liens on real or registered personal property ten years from the date (a) the youngest child becomes of age or dies or (b) the most recent execution was issued to collect the judgment, whichever is later, and such lien shall not be reinstated.

George's youngest child attained the age of 21 years on January 29, 1982, over 13 years before DSS instituted the income withholding procedure. No attempts to execute were made since 1980, 15 years before DSS initiated the income withholding process. George claims that since the judgment liens ceased under § 42-371(2) on January 29, 1992, the income withholding procedure commenced in 1995 was barred.

Specifically, George contends that by passing this preceding legislation, the Legislature intended to render such judgments no longer enforceable against a debtor and any of his property after the running of the prescribed time period. He further argues that the legislation, by taking away lien enforcement powers from child support judgments, must be construed to render these judgments dormant by passage of the requisite time period. He submits that it was not the Legislature's intent in passing § 42-371(2) "to allow child support judgments to continue ad infinitum." Brief for appellant at 11. Essentially, George argues that based on § 42-371(2), the child support judgment here became dormant or otherwise unenforceable before the income withholding procedure was commenced.

Is Judgment Dormant?

Section 42-371(2) provides that child support judgments shall only cease to be liens on specified property 10 years from the prescribed events. It does not declare that such judgments cease to exist after this passage of time. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; where the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged in to ascertain their meaning. In re Estate of Muchemore, supra; Van Ackeren v. Nebraska Bd. of Parole, supra.

George's argument that a judgment ceases when the lien ceases fails to recognize the fundamental distinction between a judgment and a judgment lien. A judgment lien is a creature of statutes which in express terms or by necessary implication give judgments such effect; it is purely a creature of statute. 50 C.J.S. Judgments § 551 (1997). See, also, Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980) (lien of judgment is creation of statute subject to legislative control and did not exist at common law, citing 49 C.J.S. Judgments § 454 (1947)); Halmes v. Dovey, 64 Neb. 122, 89 N.W. 631 (1902).

Neb.Rev.Stat. § 25-1504 (Reissue 1995), for example, creates a lien on the lands and tenements of a judgment debtor within the county where the judgment is entered, and Neb.Rev.Stat. § 25-1303 (Reissue 1995) provides that a transcript of a judgment filed in the office of the clerk of the district court and entered on the judgment records shall be a lien on the property of the debtor in that county where filed. On the other hand, a money judgment is not automatically a lien on personal property in this state, and a lien is not acquired until the property is seized in execution. See § 25-1504. See, also, Credit Bureau of Broken Bow, Inc. v. Moninger, 204 Neb. 679, 284 N.W.2d 855 (1979); Ceres Fertilizer, Inc. v. Beekman, 209 Neb. 447, 308 N.W.2d 347 (1981) (no lien existed by reason of money judgment on funds held by court, as no execution had yet been issued). As seen above, § 42-371(1) declares that child support orders shall be liens "as in other actions, upon real property and any personal property registered with any county office...."

The lien of a judgment is merely an incident of the judgment and may not exist independently of the judgment. 50 C.J.S. Judgments § 552 (1997). In other words, it is essential to the creation of a judgment lien that there shall be a judgment and it is essential, that the judgment be final, valid, and subsisting. Id., § 555. Thus, when a judgment becomes dormant it ceases to be a lien until revived. See, e.g., Lammers Land & Cattle Co. v. Hans, 213 Neb. 243, 328 N.W.2d 759 (1983) (dormant judgment cannot support creditor's bill); Glissmann v. Happy Hollow Club, 132 Neb. 223, 271 N.W. 431 (1937); Halmes v. Dovey, supra.

As is clear from the foregoing principles, a valid and subsisting judgment is necessary to the existence of a judgment lien. As an example, Neb.Rev.Stat. § 25-1515 (Reissue 1995) provides that in cases of judgments generally, if an execution is not sued out within 5 years from the date of any judgment, or if 5 years have intervened between the date of the last execution issued and the time of suing out another writ of execution, the judgment becomes dormant and shall cease to operate as a lien on the estate of the judgment debtor. See, also, Neb.Rev.Stat. § 25-1542 (Reissue 1995). However, it is important to note that under § 25-1515, the judgment lien ceases as a result of the judgment becoming dormant, not vice versa. The judgment becomes dormant by the express terms of the statute, not because the lien ceases. Under § 25-1515, once a judgment becomes dormant, the lien ceases, and the lien is revived only when the judgment is revived, a procedure addressed in Neb.Rev.Stat. § 25-1420 (Reissue 1995).

In sum, § 42-371(1) creates a statutory lien arising from a child support judgment. Section 42-371(2) extinguishes that lien, not the judgment. The language of § 42-371(2) is plain and unambiguous, and no interpretation is necessary to ascertain its meaning. George would have us construe the statute as stating that "[c]hild support ... judgments [shall become dormant and ] shall cease to be liens," much the same as § 25-1515 now...