Sempek v. Sempek

• Decision Date: 13 April 1977
• Docket Number: No. 40858,40858
• Citation: 198 Neb. 300,252 N.W.2d 284
• Parties: Roberta I. SEMPEK, Appellee, v. Lawrence J. SEMPEK, Appellant.
• Court: Nebraska Supreme Court

Page 284

252 N.W.2d 284

198 Neb. 300

Roberta I. SEMPEK, Appellee, v. Lawrence J. SEMPEK, Appellant.

No. 40858.

Supreme Court of Nebraska.

April 13, 1977.

Syllabus by the Court

1. A motion for new trial under section 25-1143, R.R.S.1943, is required in cases involving constructive contempts committed outside the presence of the court.

2. A motion for new trial must be made within 10 days of the verdict or decision rendered, except where a person is "unavoidably prevented." That term refers to circumstances beyond the control of the party desiring to file a pleading in our courts, and signifies something that was beyond the ability of the person affected to have avoided.

3. A motion for new trial which is not filed within the time specified by statute is a nullity and of no force and effect, and this court will not review alleged errors occurring during trial unless a motion for a new trial was made in the trial court and a ruling obtained thereon.

4. Contempts may be prosecuted by affidavit, and such an affidavit serves the purpose of a pleading.

5. Although affidavits not included in the bill of exceptions will not be considered as evidence by this court, an affidavit charging contempt may be considered by this court, even if not offered and received in evidence, for the limited purpose of determining whether the pleadings support the judgment.

6. Where the reading of an affidavit for contempt clearly indicates that the alleged violation of a court order was willful, the failure to use that express word does not render the affidavit defective.

David J. Cullan of Cullan & Cullan, Omaha, for appellant.

Mary P. Clarkson, Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

BRODKEY, Justice.

Lawrence J. Sempek appeals a sentence of 30 days imprisonment in the Sarpy County jail imposed upon him by the District Court for Sarpy County, which found him to be in contempt of court for failure to comply with a decree of dissolution of marriage, ordering him to pay and to hold the appellee, Roberta I. Sempek, harmless from all debts incurred prior to the filing of the petition for dissolution between the parties. We affirm.

In his appeal to this court from that finding and sentence, Lawrence makes only two assignments of error. First, he alleges that there was a total lack of evidence to support his conviction and sentence for contempt. Secondly, he alleges that the decree in the dissolution proceedings did not impose upon him the duty for the breach of which he was found in contempt; and the decree contained no order for him to pay the debts incurred during the marriage or to hold his ex-spouse harmless therefrom. We consider the latter assignment of error first.

In the decree of dissolution entered November 21, 1975, the court found, among other things, that the parties had entered into a property settlement and alimony agreement and that the agreement was fair and reasonable; and incorporated the agreement into the decree. The court also ordered and adjudged in the decree: "That the property of the parties be awarded to the respective party pursuant to their property settlement agreement." The property settlement and alimony agreement referred to, a copy of which was attached to the decree, not only assigned property to the petitioner and the respondent, respectively, but also contained provisions for the payment of attorney's fees. Paragraph V, entitled "Debts," specifically provided: "Respondent shall pay and hold harmless the Petitioner of all debts incurred prior to the filing of the Petition for Dissolution." Although the court did not specifically mention the payment of the marital debts in the ordering and adjudging portion of the decree, it did find that the property settlement agreement between the parties was fair and reasonable, and incorporated the settlement into the decree, and did order and direct that the property of the parties be awarded to the respective parties pursuant to their property settlement agreement. We think the intention of the court was clearly manifested by its actions in that regard. There is no claim on the part of the appellant that he did not know or fully understand what he was required to do under the terms of the voluntary property settlement agreement entered into by him; and we therefore hold that under the terms of the decree of dissolution, he was obligated to hold his wife harmless from the payment of the marital debts existing at the time of the filing of the petition. Appellant's claim to the contrary is without merit.

We now consider appellant's first assignment of error that there was a lack of evidence to support his conviction for contempt and sentence imposed thereon. It is true, as reflected by the record, that at the hearing on the contempt charge, following the filing of an affidavit for that purpose by Roberta, there was no formal evidence introduced in the nature of testimony from witnesses sworn under oath for that purpose. The entire hearing appears to have been conducted in the nature of an informal dialogue and arguments between the respective attorneys, and between the court and the attorneys. The affidavit of contempt which was filed in the court to commence the proceedings was called to the attention of the court, but was not introduced in evidence at the hearing. However, the court stated that the affidavit made a prima facie case of contempt and placed the burden on Lawrence to proceed.

The attorney for the appellant, Lawrence, at that time, pointed out that Mr. Sempek had been trying to straighten out the situation with the creditors; that Sempek realized he had an obligation to take care of the debts, and had been hoping to obtain a call for employment from his union, but realized that he would have to make other efforts; that he had attempted to obtain a job at the Holiday Inn as a bookkeeper but did not have the educational background; and that he has started a new job that day driving an ambulance. He hoped to be able to keep that job until the following summer when there would be more construction work available for laborers. Lawrence's attorney also told the judge at that time that his client had no property, and had debts approximating $9,000, which he was in process of discharging in bankruptcy. He also pointed out that his client had made efforts to meet his responsibilities, and had been able to obtain approximately $2,000 to pay off an indebtedness on his former wife's automobile.

Counsel for Roberta also pointed out to the court that they had had litigation in three different courts over the debts of the parties; that Mr. Sempek did not have to support anyone other than himself; that he was a single individual and was living at home with his parents; that he was 25 years old, strong and able-bodied; that her client desired protection from further harassment by the creditors; and finally that Mr. Sempek did not seem to realize that he had obligations and must meet them.

At the end of the final comments by counsel for Roberta, the court made the following statement to appellant's counsel: "Any rebuttal, Mr. Troia? Is the matter submitted to the Court? Mr. Troia: Yes, your honor." The court then stated: "Let the record show that this decree was entered on the 13th day of November rather, the property settlement was entered on that date. The decree was entered on the 21st day of November. And the evidence shows that the respondent has not complied to the decree, and the Court, from the evidence and the testimony, does find him in contempt of court. It is the order of this Court that the respondent be sentenced to thirty days in Sarpy County Jail." The court then suspended the execution of the sentence for 30 days to afford Lawrence an opportunity to purge himself of contempt but specifically provided that at the end of 30 days, if he had not complied with the court's order, then he would serve his 30 days in the jail for contempt.

Although it is true, as previously stated, that no sworn testimony was received by the court at the contempt hearing, nevertheless, it might well be argued that counsel for the parties agreed that the testimony relative to the alleged contempt might be presented to the court by way of their oral statements. This is substantiated, it seems, by the inquiry of the court, immediately preceding the pronouncement of its decision, as to whether Mr. Troia had anything further to present in rebuttal, or whether he submitted the matter to the court, and his answer that it was.

Counsel for Roberta also contends that the statements made by the attorney for Lawrence during the contempt hearing amounted to judicial admissions which supplied any lack of formal evidence, and that those admissions contained in the statements of Lawrence's attorney were sufficient to sustain the action of the court in finding him guilty of contempt. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true. Savorelli v. Stone,168 Neb. 419, 96 N.W.2d 222 (1959); Vermaas v. Heckel, 170 Neb. 321, 102 N.W.2d 647 (1960). Assuming, without deciding, that the statements made by counsel for Lawrence at the contempt hearing did in fact amount to judicial admissions, as claimed by counsel for Roberta, there would, it appears, still be a serious question as to whether those statements were sufficient to establish a violation of the decree of the court on the part of Mr. Sempek under the circumstances, so as to justify the finding of contempt entered by the court. However, for reasons hereinafter stated, we are not permitted to make a determination as to the sufficiency of evidence under the facts of this case.

Lawrence was found to be in contempt of ...