Nielsen v. Nielsen
| Decision Date | 26 July 2005 |
| Docket Number | No. A-04-615.,A-04-615. |
| Citation | 13 Neb. App. 738,700 N.W.2d 675 |
| Parties | Steve NIELSEN et al., appellants, v. Donald E. NIELSEN and Clarence Mock, appellees. |
| Court | Nebraska Court of Appeals |
Richard J. Thramer, Dakota City, for appellants.
Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, Norfolk, for appellee Donald E. Nielsen.
Clarence E. Mock, Oakland, and Matthew M. Munderloh, of Johnson & Mock, for appellee Clarence Mock.
Steve Nielsen, Michael Nielsen, Don Duane Nielsen, and the Estate of Barbara Jean Nielsen appeal from the decision of the district court for Cuming County granting summary judgment in favor of Donald E. Nielsen and Clarence Mock. We do not reach the merits of the summary judgment, because we find that the plaintiffs-appellants lack standing.
Donald E. Nielsen (Donald) and Barbara Jean Nielsen (Barbara) were married on June 29, 1951, in Blair, Nebraska. During the marriage, three children were born: Don Duane, Steve, and Michael. On September 6, 1989, Barbara filed a petition for dissolution of marriage, and her amended petition was filed on October 16. On November 20, 1989, the divorce decree was entered, in which the court approved the property settlement agreement entered into by Donald and Barbara. Also on November 20, and pursuant to the property settlement, Barbara received a lump-sum payment of $625,000 from Donald. During the divorce, Donald was represented by his long-time attorney, Mock, and Barbara was represented by William Line. At the time of the decree, Barbara had terminal cancer, and she died of complications related to such cancer on July 24, 1990.
On November 13, 2003, Steve, Michael, Don Duane, and the Estate of Barbara Jean Nielsen (hereinafter collectively referred to as "Plaintiffs") filed a petition against Donald and Mock. Plaintiffs alleged that Steve, Michael, and Don Duane are the only heirs pursuant to the will of Barbara and that each was to receive an equal share of her estate, which the record shows was executed on November 20, 1989—the same day as the divorce. In count I of the petition, Plaintiffs alleged that during the course of her marriage to Donald, Barbara was never fully informed as to the value and type of investments composing the marital estate. Plaintiffs also alleged that after filing the petition for dissolution of marriage, Donald conspired with others (including Mock and Line) to conceal from Barbara and the court the actual value and extent of the entire marital estate in an effort to procure Barbara's acquiescence to a proposed distribution of the marital estate. Plaintiffs alleged that at all relevant times, Barbara was suffering from terminal cancer, and that she relied solely upon the fraudulent representation of the value of the marital estate and upon the advice of her counsel, Line, with regard to the truth of Donald's representations. Plaintiffs alleged that unbeknownst to Barbara, said representations as to the value of the marital estate were false, and known to be false by Donald, Mock, and Line, who had agreed to and entered into a plan to defraud Barbara as to the value of the marital estate. Plaintiffs alleged that Donald and Mock obtained an agreement of compliance with Barbara's attorney, Line, in furtherance of their scheme to defraud Barbara, through the payment of $25,000, of which $10,000 was paid to Line in cash at the direction of Donald and the remaining $15,000 was paid to Line through the award of attorney fees. Plaintiffs alleged that such amount bore no justification to the billable hours expended by Line.
Plaintiffs also alleged that Rod Zwygart, a certified public accountant and the personal accountant of Donald and Barbara, periodically, at Donald's request, prepared statements of assets and liabilities of Donald, which statements reflected only the cost of said assets and reflected only the assets which were disclosed to Zwygart by Donald or directed to be included by Donald, but that the actual assets of Donald greatly exceeded those of which were disclosed to Zwygart. Plaintiffs alleged that the financial statement presented to Barbara, and relied upon by her in the formulation of her decision to accept the proposed stipulation and property settlement agreement, was based largely upon a cost accounting method of the disclosed assets and was not reflective of their true fair market value and that the financial statement did not contain an accurate statement of the entire marital estate. The pleading further alleged that such false and misleading financial information was presented to Barbara as fair and accurate valuations of the entire marital estate and that Barbara accepted Donald's settlement proposal based upon such false and misleading information and without the independent advice of counsel because Line had accepted $10,000 in cash from Donald and was to be paid $15,000 in attorney fees. It is alleged that the first time Plaintiffs became aware of the conspiracy to defraud Barbara was after a meeting in December 2001, requested by Zwygart, in which Zwygart revealed such to Don Duane.
Plaintiffs alleged that Barbara's divorce from Donald was procured by fraud and that Donald concealed from Barbara and the court the true value and extent of the marital estate in order to effectuate a decree incorporating Donald and Barbara's property settlement agreement, which was procured through the use of bribery, deceit, misrepresentation, concealment of assets, and fraud.
In count II of the petition, Plaintiffs alleged that Steve, Michael, and Don Duane are the only heirs to the estate of Barbara and that prior to her filing the petition for dissolution of marriage, Barbara executed a last will and testament specifically disinheriting Donald and leaving her entire estate to Donald and Barbara's three sons. As said, the record shows the date of her will to be November 20, 1989. Plaintiffs alleged that the intent of Donald in perpetrating the fraud upon Barbara was to prevent the effective distribution of her interest in the marital estate to their three sons, as set forth in her last will and testament. Plaintiffs alleged that the intent of Donald, Mock, and Line was not only to deny Barbara her rightful share of the marital estate, but also to deny Steve, Michael, and Don Duane the benefits as set forth in Barbara's last will and testament. Plaintiffs alleged that by virtue of the conspiracy, Steve, Michael, and Don Duane were deprived of their rightful shares of Barbara's estate, resulting in damages, including loss of enjoyment of life, loss of educational opportunities, loss of the use and economic benefits derived from their rightful inheritance, and prejudgment interest. Plaintiffs requested judgment against Donald and Mock "on Count I for determination by the Court of a fair and equitable distribution of the marital estate, said sum to be in excess of $20,000,000.00, and on Count II, a sum determined by the Court to fairly and adequately compensate Plaintiff[s] in an amount to be determined."
On February 23, 2004, Mock filed a motion for summary judgment, alleging that "there is no genuine issue as to any material fact and [he] is entitled to judgment as a matter of law." On February 26, Donald filed his motion for summary judgment, also alleging that "there is no genuine issue or conflict as to any material fact and [he] is entitled to judgment as a matter of law." On March 3, Plaintiffs filed separate resistances to the motions for summary judgment, the details of which are not germane to our resolution of this appeal. A hearing on the motions for summary judgment was held on March 4 and continued on April 1. Both motions were heard together because the evidence was the same in both. Subsequent to the April 1 hearing, Donald and Mock submitted written objections to the exhibits.
The district court's order was filed on May 6, 2004. The district court granted both Mock's and Donald's motions for summary judgment, finding that there was no genuine issue shown by the evidence as to reliance by Barbara upon any statement made by Mock, that the undisputed evidence contravened any claim of fraudulent misrepresentation by Donald, and that the evidence disclosed no underlying tort as would be required by a theory of civil conspiracy between Donald and Mock. Plaintiffs now appeal.
Plaintiffs' assignments of error generally contend that the trial court wrongfully entered summary judgment, but because we find a lack of standing, we do not detail such assignments.
Before we can reach the merits of this case, we must determine whether Plaintiffs have standing to invoke the court's jurisdiction. Standing was raised for the first time on appeal; however, "[b]ecause the requirement of standing is fundamental to a court's exercising jurisdiction, a litigant or court before which a case is pending can raise the question of standing at any time during the proceeding." Mutual Group U.S. v. Higgins, 259 Neb. 616, 619, 611 N.W.2d 404, 408 (2000).
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