Jessen v. Jessen, S-99-496.

• Decision Date: 09 June 2000
• Docket Number: No. S-99-496.,S-99-496.
• Parties: Kathryn Joan JESSEN, appellee, v. Terry Lynn JESSEN, appellant.
• Court: Nebraska Supreme Court

611 N.W.2d 834

259 Neb. 644

Kathryn Joan JESSEN, appellee, v. Terry Lynn JESSEN, appellant.

No. S-99-496.

Supreme Court of Nebraska.

June 9, 2000.

James L. Zimmerman, of Sorensen & Zimmerman, P.C., Scottsbluff, for appellant.

Jeffrey L. Hansen, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

NATURE OF CASE

MILLER-LERMAN, J.

Terry Lynn Jessen appeals the order of the district court for Scotts Bluff County which denied Terry's motion to quash garnishment and order repayment of alimony. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

The instant appeal arises from the sequelae of dissolution proceedings involving the parties, Terry and Kathryn Joan Jessen, who were married on September 6, 1975, and divorced on September 18, 1996. The parties have filed three separate appeals involving various issues raised in the dissolution proceedings. In Jessen v. Jessen, 5 Neb.App. 914, 567 N.W.2d 612 (1997), the Nebraska Court of Appeals dismissed Terry's appeal of the district court's order finding him in contempt of a nonhypothecation order for lack of a final, appealable order. In Jessen v. Jessen, case No. A-96-1151, a memorandum opinion and judgment on appeal filed November 10, 1998 (appeal of the decree), upon cross-appeals, the Court of Appeals affirmed all challenged orders of the divorce decree, except the award of alimony, which it vacated. The instant appeal arises from the district court's order subsequent to the spreading of the mandate following the appeal of the decree.

On June 21, 1994, Kathryn filed a petition for dissolution of marriage. On September 18, 1996, the district court entered the decree of dissolution. In the decree, the district court, inter alia, dissolved the parties' marriage; awarded custody of the couple's two children to Kathryn, with visitation to Terry; ordered Terry to pay child support; divided the parties' marital property; and ordered Terry to pay Kathryn alimony in the amount of $3,000 per month for 10 years.

On September 27, 1996, Terry filed a motion for new trial. On the same date, Kathryn filed a motion to establish temporary orders and set supersedeas, in which she requested, inter alia, that the district court award her temporary spousal support while the decree was being appealed. In a journal entry filed October 18, 1996, the district court overruled both parties' motions for new trial. In the same journal entry, the district court awarded Kathryn temporary alimony pending appeal in the amount of $3,000 per month.

On November 8, 1996, Terry filed a notice of appeal, in which he stated that he was appealing the decree and the district court's journal entry denying his motion for new trial. Thereafter, Kathryn filed a cross-appeal.

In Terry's brief filed in the appeal of the decree, he assigned the following 10 errors:

1. The Decree of the court is not sustained by sufficient evidence.

2. The Decree of the court is contrary to the evidence.

3. The Decree of the court is contrary to law.

4. The court erred in finding that an antenuptial agreement [the parties had signed prior to marriage] was not valid and binding.

5. The court abused its discretion in its determination of the income the parties would receive off the property awarded to them [as a result of the property division] by not relying upon income tax returns, but by relying upon a return investment analysis.

6. The court erred in determining child support again based on the income analysis used by the court to determine what income would be realized upon the court's return on investment analysis.

7. The court erred in awarding alimony be paid by [Terry] to [Kathryn] in view of the income available to [Kathryn] and the amount of income that she would derive from the property awarded to her.

8. The court erred in awarding attorney fees and costs to be paid by [Terry] to [Kathryn] in view of the property and income that was awarded to [Kathryn].

9. The court erred in its determination of what property should be set aside as pre-marital.

10. The court erred in the division of property and the court's evaluation of the property that was divided by the court and awarded to [Kathryn] and [Terry], and evaluations that the court placed upon pre-marital property awarded to [Terry].

Brief for appellant in case No. A-96-1151 at 3-4.

In the appeal of the decree, Terry did not assign as error the district court's award of temporary alimony to Kathryn pending appeal. Furthermore, Terry did not assign as error or argue in his brief to the Court of Appeals that the district court should be ordered to give him a credit for the temporary alimony paid pending appeal, which credit would be applied against either a permanent alimony award or the division of property, should Terry be successful in either of his appellate challenges to alimony or the division of property.

The Court of Appeals affirmed in part, and in part reversed the district court's decree. Specifically, the Court of Appeals affirmed the district court's decree in all respects except for the award of alimony, which it reversed, concluding it was an abuse of discretion. In its memorandum opinion of the appeal of the decree, the Court of Appeals did not address the district court's award of temporary alimony pending appeal.

Terry and Kathryn each filed a petition for further review with the Supreme Court. The petitions of both parties were denied on February 10, 1999. On February 19, the mandate was issued.

On April 8, 1999, Kathryn filed a "Petitioner's Motion to Authorize Release of Supersedeas Funds and to Allow the District Court to Apply Supersedeas to Unpaid Alimony Balance." In an order dated April 9, the district court spread the mandate upon its records. On April 16, Kathryn filed an affidavit and praecipe for summons in garnishment seeking to garnish the principal sum of $12,000 plus interest and costs of $371.60. In support of her applications, Kathryn alleged that Terry had essentially ceased paying alimony after the Court of Appeals had filed its memorandum opinion. Kathryn requested, inter alia, that the district court apply a supersedeas bond previously posted by Terry in the earlier contempt proceeding to Terry's delinquent alimony payments.

On April 20, 1999, in response to Kathryn's motions, Terry filed a "Motion to Quash Garnishment and Order Repayment of Alimony." In the motion to quash, Terry stated that "the alimony judgment was reversed by the Court of Appeals making the order to pay alimony a nullity and therefore unenforceable." He sought an order requiring Kathryn to "refund all alimony or temporary alimony pending appeal payments made to her."

The parties' respective motions came on for an evidentiary hearing on April 20, 1999, and in a journal entry of even date, the district court overruled Terry's motion to quash and granted Kathryn's unpaid alimony motion. The district court ordered that Terry's supersedeas bond be used to satisfy the unpaid alimony and that the balance of the bond be released to Terry. Terry appeals the order of April 20 denying his motion to quash.

ASSIGNMENT OF ERROR

On appeal, Terry has assigned one error. Terry claims the district court erred in overruling his motion to quash "to require [Kathryn] to repay the alimony paid by [Terry] to [Kathryn] during the pendency of the appeal after the appellate court determined that [Kathryn] was not entitled to alimony and reversed the alimony awarded in the Decree."

STANDARD OF REVIEW

Because the substance of Terry's motion to quash challenges the validity of the district court's order awarding Kathryn temporary alimony pending appeal, and Terry's assignment of error presents the same issue, the issue presented is one of law in connection with which we, as a reviewing court, have an obligation to reach our own conclusion independent of those reached by the lower courts. See Pfeifer v. E.I. Du Pont de Nemours and Co., 258 Neb. 756, 606 N.W.2d 773 (2000); State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

ANALYSIS

Records Reviewable on Appeal.

In order to resolve this appeal, we must determine what evidence and records can be reviewed by this court on appeal. It is provided by statute that judicial notice may be taken of any fact not subject to reasonable dispute, when such fact is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Neb.Rev.Stat. § 27-201(2)(b) (Reissue 1995). It is well established that where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. In re Adoption of Trystyn D., 259 Neb. 539, 611 N.W.2d 112 (2000); Baltensperger v. Wellensiek, 250 Neb. 938, 554 N.W.2d 137 (1996). Similarly, appellate courts in this state may take judicial notice of a document, including briefs filed in an appeal, in a separate but related action concerning the same subject matter in the same court. Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 (1999); State Security Savings Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702 (1980); State v. Vann, 2 Neb.App. 946, 519 N.W.2d 568 (1994). We, therefore, review the briefs and the transcript filed in the appeal of the decree in the consideration of the instant appeal.

Overruling of Terry's Motion to Quash.

At the core of Terry's appeal is the claim that he should not be liable for temporary alimony pending appeal when the alimony award set forth in the decree is reversed on appeal. Indeed, in his brief in support of his current appeal of the order of the district court overruling his motion to quash, Terry asserts:

When a

...