Friedman v. Friedman, S–14–710

• Decision Date: 22 May 2015
• Docket Number: No. S–14–710,S–14–710
• Citation: 863 N.W.2d 153,290 Neb. 973
• Parties: Bruce R. FRIEDMAN, appellant, v. Susan C. FRIEDMAN, appellee.
• Court: Nebraska Supreme Court

290 Neb. 973

863 N.W.2d 153

Bruce R. FRIEDMAN, appellant,

v.Susan C. FRIEDMAN, appellee.

No. S–14–710

Supreme Court of Nebraska.

Filed May 22, 2015

Bruce R. Friedman, pro se.

Karl Von Oldenburg, of Brumbaugh & Quandahl, P.C., L.L.O., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

McCORMACK, J.

NATURE OF CASE

The ex-husband appeals from an order generally overruling his objections to garnishment upon a foreign dissolution decree. The ex-husband asserts that he was not properly notified of the registration of the foreign judgment or of the garnishment, that the court should have declared the amount of the foreign judgment to be lower than what was sought by his ex-wife, and that the court inadequately addressed the percentage of his wages that should be garnished. We affirm.

BACKGROUND

On May 7, 2014, Susan Roggentine, also known as Susan C. Friedman (Roggentine), filed in the district court for Douglas County an affidavit for registration of a foreign judgment. According to the affidavit, Roggentine sought to enforce a total of $160,458.49 awarded in a Colorado dissolution decree against her ex-husband, Bruce R. Friedman. According to the affidavit, the award consisted of $145,243.49, plus $15,215 in court-awarded attorney fees, for a total of $160,458.49.

A certified copy of the decree, dated October 26, 2011, was attached to the affidavit. In the decree, the Colorado court ordered that Friedman pay Roggentine $100,000 in the division of assets and deliver to Roggentine described items of personal property and the title to specified vehicles. The court ordered that Friedman reimburse Roggentine for $45,243.49 that Friedman induced Roggentine to withdraw from her individual retirement account to pay Friedman's nondischargeable debts. The court awarded spousal maintenance in the amount of $2,000 per month for 12 months, but found that Friedman's default on $10,399 in temporary maintenance obligations justified that maintenance be awarded in a lump sum of $34,399. The court ordered Friedman to pay $15,215 in attorney fees and $850 in costs.

In the conclusion of the order, the Colorado court entered judgment in favor of Roggentine in the amount of $34,399, as of November 1, 2011. The court further ordered Friedman to pay Roggentine $145,243.49 in cash or certified funds within 30 days of the court's order and ordered Friedman to pay the balance of attorney fees in the amount of $15,215 and costs of $850. Mathematically, these listed sums total $195,707.49. The order itself does not purport to set forth a total summation of the various amounts awarded.

The affidavit in support of registration of the foreign judgment set forth as Friedman's last known address the correct house number corresponding to the address where he lived, but the street number stated 188th Street. Friedman actually lived on 118th Street. Accordingly, subsequent to the filing of the foreign judgment, the clerk of the court sent notice to the incorrect address. The notice was returned as undeliverable.

On June 20, 2014, Roggentine filed an affidavit and praecipe for summons in garnishment after judgment. This listed Friedman's correct address and stated that the amount due on the judgment was $160,458.49, plus costs in the amount of $101.12, for a total of $160,559.61. The affidavit set forth that Friedman was not the head of a family for purposes of the percentage of disposable earnings subject to garnishment under Neb.Rev.Stat. § 25–1558 (Reissue 2008).

Roggentine asked that the summons in garnishment be issued by certified mail to Friedman's employer. Friedman's employer received the summons and order of garnishment in aid of execution on June 30, 2014. Although the summons/ garnishment order lists the incorrect 188th Street address for Friedman, the certified mail receipts found in the transcript appear to show that it was sent to Friedman via certified mail to the correct address. The record does not reflect Friedman's receipt of that mailing, however.

On July 11, 2014, Friedman filed in the district court a pro se "Ex–Parte Motion to Quash," "Objection to Registration of Foreign Judgment," and "Objection to Garnishment." In the motion, Friedman alleged that he never received notice of the filing of the foreign judgment or of the garnishment until notified by his employer's payroll processor "via regular postal mail" on July 7, 2013. Friedman alleged he was therefore "neglected of his opportunity" to object to the judgment Roggentine was attempting to register and to object to the garnishment of his wages.

In the motion, Friedman requested a hearing to challenge the allegation that he was not the head of a family for purposes of the garnishment calculation. Friedman also asked that the court quash the garnishment on the grounds that Roggentine had failed to (1) notify the clerk of his proper address when filing the foreign judgment, (2) mail the notice of the garnishment by certified mail to his correct address, and (3) certify to the court that she had complied with Neb.Rev.Stat. § 25–1011 (Cum.Supp.2014).

Friedman received a hearing on his motion on July 18, 2014. At the hearing, Friedman first complained of the lack of notice and proper service of process. He argued in this regard that Roggentine could not garnish his wages, because she had failed to satisfy the statutory notice requirements. He also indicated his belief that Roggentine had purposefully provided the wrong address.

Second, Friedman challenged the amount of the foreign judgment that was registered, and which served as the basis for the garnishment. Friedman claimed he was obligated to pay only $149,000 under the foreign order. However, Friedman admitted he had made no payments to Roggentine pursuant to that order. Friedman also indicated that the order had been affirmed on appeal.

On this second point, the court—apparently adding up only the amounts awarded on the last page of its conclusion—stated that the order plainly totaled $160,000. Friedman admitted that was "what it says at the bottom of the document." The court responded that because the award was affirmed on appeal, "that's what you're stuck with."

Finally, Friedman explained the reasons he ought to be considered head of a family for purposes of any garnishment. Roggentine's counsel responded that Roggentine did not object to Friedman's being considered head of a family.

There was no indication at the hearing that Friedman had as of that time received a garnished paycheck. Friedman claims in his appellate brief that he had one paycheck garnished on July 14, 2014, at the non-head-of-a-family rate of 25 percent.

¹ Neither party offered any exhibits at the hearing.

On August 5, 2014, the court issued the following order: "The Court finds that [Friedman's] objection to the registration of a foreign document and objection to garnishment should be overruled and denied. The Court further finds that [Friedman] is the head of a household." That same date, the court issued an order for continuing lien, which was sent to Friedman's employer. The order stated that "there is not successful objection to garnishment filed." The order for continuing lien does not specify whether Friedman is head of a family. Friedman indicates in his appellate brief that since the August 5 order, his paycheck has been garnished at the maximum head-of-family rate of 15 percent.² Friedman appeals.

ASSIGNMENTS OF ERROR

Friedman assigns that the court erred in (1) denying and overruling his objection to the registration of the foreign judgment on the basis that the amount was incorrect, (2) failing to enter a declaratory judgment setting forth the correct amount of the foreign judgment, (3) overruling and denying his objection to the registration of the foreign judgment on the grounds that he was denied notice and due process in relation to the registration of the judgment, (4) allowing a garnishment to proceed when there was no validly registered judgment, (5) overruling and denying his objection to the garnishment and not quashing the garnishment for lack of proper service and on the grounds that he was denied due process and the right to be heard prior to the garnishment of his wages, (6) allowing the garnishment at the maximum allowable level, and (7) failing to rectify the initial amount garnished at the " ‘not head of household’ " level.

STANDARD OF REVIEW

On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.³

ANALYSIS

NOTICE

Friedman first argues that the garnishment order should have been set aside, because Roggentine failed to comply with the notice requirements of the statutes governing registration of foreign judgments and garnishments. He relatedly asserts that he was denied due process of law, arguing he was denied an opportunity to be heard on the issue of registering the Colorado judgment and on the amount of the garnishment.

Neb.Rev.Stat. § 25–1587.04 (Reissue 2008), of the Nebraska Uniform Enforcement of Foreign Judgments Act,⁴ states that at the time of the filing of the foreign judgment, the judgment creditor or his or her lawyer shall make and file with the clerk of the court an affidavit setting forth the name and last-known post office address of the judgment debtor. The clerk of the court shall thereafter mail notice of the foreign judgment to the judgment debtor at the address given.

Section 25–1011(1), of the attachment and garnishment statutes, states that the summons and order of garnishment and the interrogatories in duplicate, a notice to judgment debtor form, and a request for hearing form shall be served upon the garnishee in the manner provided for service of a summons in a civil action.

Neb.Rev.Stat. § 25–516.01(1) (Reissue 2008) pertains to service of a summons in a civil action. As relevant here, § 25–516.01(1) states that "[t]he voluntary appearance of the party is equivalent to service."...