Ryan v. Ryan
| Decision Date | 17 September 1999 |
| Docket Number | No. S-98-280.,S-98-280. |
| Citation | 257 Neb. 682,600 N.W.2d 739 |
| Parties | Sharon A. RYAN, appellant, v. Howard M. RYAN, appellee. |
| Court | Nebraska Supreme Court |
Michael N. Schirber, of Schirber Law Offices, P.C., Papillion, for appellant.
Carll J. Kretsinger, P.C., Omaha, for appellee.
Sharon A. Ryan filed a petition in the Sarpy County District Court for an accounting to determine how much her ex-husband, Howard M. Ryan, owed her in arrearage pursuant to the terms of the parties' divorce decree. The district court found that a portion of the decree was void insofar as it ordered a division of Howard's military disability pension. Given that, the district court determined that Howard did not owe Sharon any sum of money and canceled any such arrearage in previous orders. Sharon appeals, and we affirm.
The parties married on July 10, 1965, in Council Bluffs, Iowa, and were divorced by order of the Sarpy County District Court on April 4, 1986. At the time of their divorce, the parties had three children, the oldest two of whom were at or very near the age of majority. By the terms of the divorce decree, Sharon had custody of the parties' youngest child, subject to reasonable visitation by Howard. The decree also ordered Howard to pay varying amounts of child support until the youngest child reached the age of majority.
In a paragraph separate from the child support order, the decree mandated that Howard pay Sharon one-half of his disability income from the Veterans' Administration (VA) so long as he received such income (VA disability income). Should the amount of Howard's VA disability income ever decrease, this provision of the decree required Howard to furnish a copy of any VA check showing such a reduction to the clerk of the district court so that an adjustment could be made to the actual sum payable to Sharon in the order. At the time, Howard's monthly VA disability income was $433, of which the district court ordered Howard to pay Sharon $216.50. In separate paragraphs, the decree divided the balance of the parties' property and ordered Howard to pay Sharon alimony.
Howard filed a motion for new trial on April 10, 1986, asserting that the district court erred in, among other things, awarding Sharon one-half of Howard's VA disability income. By way of a journal entry, the district court overruled Howard's motion for new trial on April 18. The district court subsequently issued orders to withhold and transmit funds from Howard's regular wages due to arrearages in Howard's obligations under the decree.
By May 16, 1988, Howard's child support and alimony arrearages had been fully satisfied via the garnishment of Howard's wages. However, the district court determined that Howard's obligation to pay Sharon one-half of his VA disability income was $4,489.50 in arrears. Nevertheless, the district court did not garnish Howard's wages further to settle the arrearage, finding that Howard had no funds available to accommodate such an order. Instead, the district court ordered Howard's wages to remain garnished in the amount of $216.50 per month so that the VA disability income arrearage would not continue to increase.
On September 2, 1988, the district court found that, including interest, Howard was in arrears $311.19 on his child support obligation, $380.96 on his alimony obligation, and $5,434.79 on his obligation to split his VA disability income with Sharon, as well as other miscellaneous items.
The district court ordered that of the $8,087.49 on deposit with the court, $6,701.91 be remitted to Sharon to remedy those arrearages and $1,385.58 be remitted to Howard. Howard filed a petition with the district court to modify the decree's alimony and child support provisions on September 20, 1988, alleging a material change in circumstances.
After a hearing held February 7, 1989, the district court found that Sharon had remarried and that she was earning an increased income. As such, the district court retroactively terminated Howard's alimony obligation and ordered a slight reduction in Howard's child support obligation, to be triggered in the event that Sharon were to claim the parties' youngest child as a tax deduction.
The district court also found that Howard's VA disability income had been reduced to $403 per month. Consequently, the district court set Howard's monthly obligation on that matter at $201.50 beginning March 1, 1989, and ordered that Howard's wages remain garnished in that amount. The district court continued that garnishment order on April 21.
On August 6, 1997, Sharon filed a motion to show cause why Howard should not be held in contempt for refusing to comply with the provision in the decree directing Howard to pay one-half of his VA disability income to Sharon. The district court granted Sharon's motion to show cause and ordered Howard to appear. Howard filed a responsive pleading asserting that the decrees' provision ordering Howard to split his VA disability income with Sharon was preempted by federal law and, thus, unenforceable.
Sharon responded by filing a petition for accounting on September 17, 1997, alleging that Howard was approximately $7,000 in arrears in his obligation to split the VA disability income with Sharon under the provisions of the decree. Howard answered by admitting that the decree as modified ordered Howard to pay Sharon $201.50 per month so long as he receives VA disability income. However, Howard denied that he was $7,000 in arrears by failing to comply with the order.
The district court held a hearing on January 29, 1998. At the close of evidence, the district court informed counsel that it intended to treat the matter as an application to determine amounts due under the decree and not an accounting action. On February 13, the district court concluded that Howard did not owe Sharon any arrearage under the terms of the decree pertaining to Howard's VA disability income.
Sharon claims, restated, that the district court erred in (1) finding that Howard did not owe Sharon anything and canceling Howard's arrearage with respect to the provision in the decree dividing Howard's VA disability income, (2) denying Sharon's motion for attorney fees and court costs, and (3) overruling Sharon's motion for new trial.
Sharon asserts, without challenging any of the underlying facts or procedural history of this case, that the doctrine of res judicata foreclosed the district court's jurisdiction to cancel Howard's obligation to share his VA disability income with Sharon. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, in which case the appellate court must reach a conclusion independent from the lower court's decision. Bonge v. County of Madison, 253 Neb. 903, 573 N.W.2d 448 (1998).
Similarly, the applicability of res judicata presents a question of law, requiring an appellate court to reach a conclusion independent of that of the lower court. Vann v. Norwest Bank Neb., 256 Neb. 623, 591 N.W.2d 574 (1999).
Regardless of whether a case is viewed as a domestic relations case or a general civil action for an accounting and recovery of amounts owed, the denial of motions for new trial and attorney fees will be upheld absent an abuse of discretion. See, Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998); Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997); Shockley v. Shockley, 251 Neb. 896, 560 N.W.2d 777 (1997).
Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case. See Bonge v. County of Madison, supra.
Therefore, we first address Sharon's claim that the lower court lacked jurisdiction to cancel Howard's obligation.
Sharon advances her lack-of-jurisdiction argument by asserting that the doctrine of res judicata barred Howard from relitigating the division of his VA disability income, because that issue was litigated in prior proceedings between the parties.
It is true that the doctrine of res judicata normally bars future litigation of points upon which the court in the original proceeding was required by the parties to form an opinion, as well as of every point which the parties could have brought forward in the original divorce proceeding had they exercised reasonable diligence. See, Vann v. Norwest Bank Neb., supra; Mischke v. Mischke,
253 Neb. 439, 571 N.W.2d 248 (1997).
In support of her position, Sharon points out that the parties required the district court to form an opinion on the division of Howard's VA disability income in the initial divorce proceeding—albeit without asserting federal preemption. Even if the parties did not actually litigate the issue of federal preemption in the original divorce proceeding, Sharon notes that Howard could have asserted it at any of the various hearings that compose the record in this case.
Moreover, the original divorce action and the subsequent proceedings clearly reached final judgment on the merits in a court of competent jurisdiction—which would usually operate as a bar to future litigation of issues that were or could have been litigated between Howard and Sharon. See Swift v. Dairyland Ins. Co., 250 Neb. 31, 547 N.W.2d 147 (1996).
Nevertheless, res judicata will not preclude a second suit between the same parties if the forum in which the first action was brought did not have jurisdiction to adjudicate the action; stated another way, judgments entered by a court without subject matter jurisdiction are void and subject to collateral attack. See, Marshall v. Marshall, 240...
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