Gallner v. Judy Gallner
| Decision Date | 25 June 1999 |
| Docket Number | No. S-98-334,S-98-334 |
| Citation | 595 N.W.2d 904,257 Neb. 158 |
| Parties | Michael GALLNER, Appellee, v. JUDY GALLNER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.
2. Equity: Judgments: Interest. The language of Neb.Rev.Stat. § 45-103.01 (Reissue 1993) is mandatory, and a court of equity does not have discretion to withhold interest on decrees or judgments for the payment of money.
3. Judgments: Interest: Time. When a judgment is modified on appeal, interest accrues on the full amount of the judgment as modified from the date the original judgment is due.
4. Judgments: Interest: Time: Appeal and Error. Pursuant to Neb.Rev.Stat. § 45-103.01 (Reissue 1993), interest accrues from the date the original judgment is due, regardless of whether an appeal is taken prior to that date.
5. Judgments: Attorney Fees: Interest: Time. An award of attorney fees in a dissolution decree is a decree or judgment for the payment of money such that, pursuant to Neb.Rev.Stat. § 45-103.01 (Reissue 1993), interest should accrue on the attorney fees from the date they were due.
6. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court.
7. Pretrial Procedure. Generally, the control of discovery is a matter for judicial discretion.
C. Gregg Larson for appellant.
Patrick M. Flood and Thomas J. Nack, of Hotz & Weaver, Omaha, for appellee.
This is an appeal from an order of the Douglas County District Court that granted partial release of a judgment in dissolution of marriage, as well as subordination of child support and alimony liens.
On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999); Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998).
The appellee, Michael Gallner, and the appellant, Judy Gallner, were married January 3, 1982. The parties had one child, born October 6, 1983, and were divorced by decree dated May 5, 1994. The trial court dissolved the marriage, divided the property, awarded custody of the minor child to Judy, and awarded child support and alimony.
Judy appealed, and the net result of the appeal was to increase the amount of the cash award to $109,534 in order to equalize the property division. Previously, the trial court had awarded Judy $50,000 to equalize the division of the marital estate, to be paid within 120 days of the date of the decree. The Nebraska Court of Appeals affirmed all other aspects of the award, including $15,000 in accountant fees and $15,000 in attorney fees, payable to Judy's certified public accountant and attorney, respectively. The Court of Appeals' memorandum opinion was filed April 16, 1996, and on May 30, this court denied Judy's petition for further review.
On January 30, 1998, Michael filed an amended application for an order declaring satisfaction of judgment and for a subordination of the child support and alimony liens to a mortgage/deed of trust on his home. Specifically, Michael sought an order declaring that there was no interest due or owing on the $109,534 property division obligation or on the accountant fee obligation and that upon payment of $11,000, the obligation for payment of the accountant fees would be satisfied. He also sought an order subordinating any child support or alimony liens to the new mortgage/deed of trust.
The purpose of obtaining this order was so that Michael could refinance his home. It was undisputed that he had paid the $109,534 property division to Judy by August 19, 1996. He had also paid all relevant attorney fees and had continued to make the court-ordered alimony and child support payments. At the time of the application, he still owed $11,000 in accountant fees, which he sought to pay out of the funds from the refinancing.
The house which Michael sought to refinance was allegedly purchased for $330,000 and financed by a 90-percent purchase money loan in the amount of $297,000. Michael testified that the house had recently been appraised at $460,000 and that he was seeking a 75-percent loan in the amount of $345,000.
Judy resisted Michael's application on the basis that he had not paid the property division in full because he had not paid any interest thereon. She asserted that the appeal process did not stay the 120 days allotted by the trial court to pay the property division and that interest accrued from 120 days after the May 5, 1994, dissolution decree. Judy further asserted that interest was due on attorney fees which were paid late, as well as on other sums awarded by the decree.
Judy also alleged that since Michael held no property in Douglas County other than his house, the subordination agreement would unduly reduce her security Judy issued a subpoena duces tecum, requesting that Michael produce his federal tax returns, financial statements, copies of mortgage applications, appraisals on the home sought to be financed, life insurance policies, and records of all property owned by Michael and located in Douglas County. Michael requested that the subpoena be quashed on the grounds that the documents were irrelevant to the application and that such production would be unduly burdensome. The district court subsequently granted the motion to quash.
for payment of child support and alimony. She further asserted that the subordination would be inappropriate in light of the fact that Michael had been late in paying several of his child support and alimony payments and had failed to comply with other elements of the decree.
On March 10, 1998, the district court issued an order declaring satisfaction of judgment and subordination of child support and alimony liens. The court determined that no interest was due on the property division and that the property division had been satisfied in full. With regard to the $11,000 balance of the accountant fees, the court stated that after payment of such fees, all obligations in that regard would be satisfied. The court overruled Judy's motions for a new trial and for attorney fees and costs, and Judy timely perfected this appeal.
Judy asserts that the district court erred (1) in quashing her subpoena duces tecum, (2) in granting Michael's amended application for an order declaring satisfaction of judgment and subordination of child support and alimony liens, (3) in subordinating child support and alimony liens to a refinance mortgage/deed of trust on real estate owned by Michael, (4) in finding that Michael had met his burden under Neb.Rev.Stat. § 42-371 (Reissue 1998), (5) in failing to award interest on child support payments which were more than 30 days late, (6) in failing to award interest on delinquent alimony payments, (7) in failing to award attorney fees and costs under Neb.Rev.Stat. § 25-824 (Reissue 1995), (8) in failing to grant a new trial, and (9) in failing to require Michael to produce his entire 1996 federal tax return.
This action is controlled by § 42-371, which provides:
(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....
....
(4) Whenever a judgment creditor refuses to execute a release of the judgment or subordination of a lien as provided in this section, the person desiring such release or subordination may file an application for the relief desired.... If the court finds that the release or subordination is not requested for the purpose of avoiding payment and that the release or subordination will not unduly reduce the security, the court may issue an order releasing real or personal property from the judgment lien or issue an order subordinating the judgment lien.
The district court entered an order declaring that Michael had satisfied his property division obligations under the divorce decree in full and declaring that upon payment of the sum of $11,000, Michael's obligation for accountant fees would be satisfied. The court ordered that any child support or alimony liens be subordinated to the new mortgage/deed of trust Michael sought relating to a home located at 11313 William Plaza, Omaha, Nebraska.
Judy asserts that the district court erred in releasing the property division judgment, because there was still due and owing postjudgment interest on the $109,534. She also claims that there is due and owing postjudgment interest on the original order for attorney and accountant fees.
We first address the property division. Neb.Rev.Stat. § 45-103.01 (Reissue 1993) provides that interest "shall accrue on decrees and judgments for the payment of money from the date of rendition of judgment until satisfaction of judgment." The language of § 45-103.01 is mandatory, and a court of equity does not have discretion to withhold interest on decrees or judgments for the payment of money. Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994). The property division judgment, as modified by the Court of Appeals, stated that the trial court should have awarded Judy $109,534 in cash to equalize the property division. The trial court had stated that the property division award was to be paid within 120 days of the date of the decree and would not bear interest if it was paid within that time.
We must determine when the interest on the judgment started to accrue. The question is whether the interest started to accrue on May 5, 1994, or 120 days after that date. In Welch, we explained that a "decree or judgment for the payment of money"...
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...post-judgment interest on lump sum cash payment husband was obligated to pay her under divorce decree); Gallner v. Gallner, 257 Neb. 158, 595 N.W.2d 904, 906, 907-09 (1999) (husband owed wife statutory post-judgment interest dating back to original 1994 decree where decree required him to p......
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...Walker , 725 So.2d 139 (Miss. 1998). Montana: Anderson v. Werner Enterprises, Inc. , 972 P.2d 806 (1998). Nebraska: Gallner v. Gallner , 595 N.W.2d 904, 257 Neb. 158 (1999). New Jersey: Medford v. Duggan , 732 A.2d 533, 323 N.J.Super. 127 (N.J. App. 1999). New York: DeSilva v. Rosenberg , 6......
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Defending and responding in general
...Walker , 725 So.2d 139 (Miss. 1998). Montana : Anderson v. Werner Enterprises, Inc ., 972 P.2d 806 (1998). Nebraska : Gallner v. Gallner, 595 N.W.2d 904, 257 Neb. 158 (1999). New Jersey : Medford v. Duggan , 732 A.2d 533, 323 N.J.Super 127 (N.J. Super 1999). New York : DeSilva v. Rosenberg,......
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Defending and Responding in General
...Walker , 725 So.2d 139 (Miss. 1998). Montana: Anderson v. Werner Enterprises, Inc. , 972 P.2d 806 (1998). Nebraska: Gallner v. Gallner , 595 N.W.2d 904, 257 Neb. 158 (1999). New Jersey: Medford v. Duggan , 732 A.2d 533, 323 N.J.Super 127 (N.J. Super 1999). New York: DeSilva v. Rosenberg , 6......
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Enforcement
...Walker , 725 So.2d 139 (Miss. 1998). Montana: Anderson v. Werner Enterprises, Inc. , 972 P.2d 806 (1998). Nebraska: Gallner v. Gallner , 595 N.W.2d 904, 257 Neb. 158 (1999). New Jersey: Medford v. Duggan , 732 A.2d 533, 323 N.J.Super. 127 (N.J. App. 1999). New York: DeSilva v. Rosenberg , 6......