Gutierrez v. Gutierrez
Decision Date | 17 December 1996 |
Docket Number | No. A-95-708,A-95-708 |
Citation | 5 Neb.App. 205,557 N.W.2d 44 |
Parties | Francisco J. GUTIERREZ, Appellee, v. Zenaida GUTIERREZ, Appellant. |
Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
2. Equity: Appeal and Error. In equity actions, an appellate court reviews the factual findings de novo on the record and reaches a conclusion independent of that of the trial court.
3. Motions for Continuance: Appeal and Error. A motion for continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of discretion.
4. Motions for Mistrial: Appeal and Error. A trial court's decision on a motion for mistrial will not be disturbed on appeal absent an abuse of discretion.
5. Words and Phrases. An abuse of discretion means that the reasons for the ruling are untenable and unfairly deprive a litigant of a substantial right and deny a just result in the matter submitted for disposition.
6. Motions for Continuance: Affidavits: Good Cause. An application for a continuance must be in writing and supported by an affidavit which contains factual allegations demonstrating good cause or sufficient reason necessitating postponement of the proceedings.
7. Motions for Mistrial: Waiver: Time. A motion for mistrial should be made at the first reasonable opportunity. If not timely made, it is waived.
8. Motions for Mistrial. A motion for mistrial must be premised upon actual prejudice, not the mere possibility of prejudice.
9. Judgments: Proof. A district court may, on motion and satisfactory proof that a judgment has been fully paid or satisfied by the act of the parties thereto, order it discharged and canceled of record.
10. Judgments: Final Orders. Neither what the parties thought the judge meant nor what the judge thought he or she meant, after time for appeal has passed, is of any relevance. What the decree, as it became final, means as a matter of law as determined from the four corners of the decree is what is relevant.
11. Judgments: Debtors and Creditors: Equity. A judgment debtor or debtor under a decree in equity may satisfy the obligation of such judgment or decree by performance of an agreement to satisfy in some manner other than that provided by the judgment or decree.
12. Contracts. Evidence of a conversation in which one party states mere conclusions as to a contract is not evidence of the contract.
Marsha L. Babcock and Bernard J. Glaser, Jr., Lincoln, for appellant.
Thomas R. Lamb, of Anderson, Creager & Wittstruck, P.C., Lincoln, for appellee.
Zenaida Gutierrez appeals from a judgment granting her ex-husband, Francisco J. Gutierrez, credit for payment of a property settlement judgment and ordering that the judgment lien against Francisco be released.
Francisco and Zenaida were divorced by decree on June 1, 1990. Prior to entry of this decree, a guardian ad litem was appointed on behalf of Zenaida as she was reportedly unable to adequately assist her attorney or understand the nature of the legal proceedings. The decree approved the parties' property settlement agreement and ordered three of the parties' rental properties to be sold as soon as practicable. After payment of outstanding mortgages and costs of sale, Zenaida was to receive the first $10,000, with the remaining proceeds to be applied to several debts specified in the decree. Portions of the decree will be set forth later as necessary.
On June 4, 1993, Francisco filed a "Petition for Credit and Release of Lien & Praecipe," in which he requested full credit for the decree obligations and release of judgment. The petition alleged that of the three properties ordered to be sold, one was unsalable due to deterioration; Francisco had to pay $850 to close the sale of the second property, and the parties netted $7,021 from the sale of the third. The petition further alleged that the parties agreed that Francisco was to use the $7,021 to pay the debts at Sears, Roebuck and Co. and Montgomery Ward & Co.; Zenaida was to receive the remainder of the $7,021; and Zenaida was to release Francisco from his obligation under the decree and grant him credit for the full $10,000 judgment.
A demurrer was filed July 8, 1993. Although the record contains no written order, comments from the trial judge indicate that a demurrer was overruled on August 13. On October 26, Zenaida filed an answer denying the allegations and a cross- petition, in which she sought alimony. A motion to continue was filed April 12, 1994, and Zenaida's attorney filed a motion to withdraw on April 15. This request to withdraw was granted by journal entry on May 16.
The matter came on for hearing on June 1, 1994. Zenaida requested another continuance, which was denied. Zenaida then orally moved to dismiss for lack of subject matter jurisdiction. This motion was overruled.
Francisco was then called to testify on his own behalf. He testified as to the condition of the properties and further stated that since the time of the decree, Zenaida had received nearly all of the rent from the properties while he had made all of the mortgage payments and necessary repairs. Francisco further testified that the sale of only one of the properties resulted in a profit to the parties and that this amount was $7,021. Francisco also attested as to the alleged oral agreements between the parties. This testimony will be set out in more detail in the discussion portion of this opinion. Finally, Francisco testified regarding the amounts owed and paid to Sears and Wards. Three real estate agents then testified regarding the properties sold, and Francisco rested. Zenaida's renewed motion to dismiss for lack of subject matter jurisdiction and motion for insufficient evidence were overruled. Zenaida's motion to dismiss her cross-appeal without prejudice was granted.
Called as witnesses on behalf of Zenaida were Francisco's current wife, who denied forging Zenaida's name on the cashed check for $7,021; Zenaida's former attorney, Sandra Hernandez Frantz, who denied being present during a conversation in which Zenaida agreed to give Francisco full credit for the $10,000; and the parties' daughter, who testified that the signature on the cashed check was not her mother's. Last, Zenaida testified, denying any oral agreement between the parties and also denying that it was her signature on the cashed check. She then rested. The matter was continued to allow rebuttal testimony and was set for August 12, 1994.
On August 5, on Zenaida's motion, the court appointed a guardian ad litem and continued the matter. On December 9, on the guardian ad litem's motion, the hearing rescheduled for December 16 was continued so that a psychological evaluation could be done on Zenaida. The trial was reset for February 16, 1995. This evaluation was admitted into evidence at a pretrial conference held February 2. At that hearing, Zenaida was found incompetent to participate further in the proceedings. Francisco's attorney moved to strike testimony elicited from Zenaida at the June 1, 1994, hearing based on her incompetency. The court took the matter under advisement and advised the parties that a continuance of the February 16, 1995, hearing was unlikely.
On February 16, the court advised it had sustained Francisco's motion to strike Zenaida's testimony. The court denied Zenaida's followup oral motion to strike from the June 1, 1994, hearing, statements or conduct of Zenaida since the time of the decree. Zenaida then orally moved for another continuance until she could testify regarding the alleged agreement. This request was overruled. She then moved for a mistrial, which was also denied. At this hearing, Francisco testified as a rebuttal witness and Zenaida called one additional witness on surrebuttal. At the close of all of the evidence, Zenaida proceeded to renew all of her motions, which were again overruled.
On May 30, 1995, the district court, after finding the allegations contained in Francisco's petition generally true, granted Francisco credit for payment of the $10,000 property settlement judgment and released the judgment lien against him.
Zenaida's assignments of error can be consolidated as asserting that the trial court erred in (1) overruling her demurrer and her motion to dismiss as this action constitutes an invalid request to modify the property settlement portion of the parties' dissolution decree; (2) overruling her June 1, 1994, motion to continue to give her new counsel sufficient time to prepare for the hearing; (3) overruling her motion for a mistrial upon finding her incompetent and striking her testimony, because such was an abuse of discretion and violated her right to due process of law; (4) overruling her motion to dismiss based on insufficient evidence because of her stricken testimony; and (5) granting Francisco credit for $10,000, which was not supported by the evidence.
Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996). See Berggren v. Grand Island Accessories, 249 Neb. 789, 545 N.W.2d 727 (1996).
In equity actions, an appellate court reviews the factual findings de novo on the record and reaches a conclusion independent of that of the trial court. Latenser v. Intercessors of the Lamb, Inc., 250 Neb. 789, 553 N.W.2d 458 (1996).
A motion for continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of discretion. Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995). Likewise, a trial court's...
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