Spady v. Spady
| Decision Date | 21 December 2012 |
| Docket Number | No. S–12–139.,S–12–139. |
| Citation | 824 N.W.2d 366,284 Neb. 885 |
| Parties | Carolyn Jean SPADY, Appellee, v. Roger Paul SPADY, Appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[284 Neb. 885]1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed is reviewed for abuse of discretion.
2. Statutes. Statutory interpretation presents a question of law.
3. Appeal and Error. An appellate court resolves questions of law independently of the trial court.
4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
5. Contempt: Proof. Outside of statutory procedures imposing a different standard, it is the complainant's burden to prove civil contempt by clear and convincing evidence.
6. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.
7. Judgments: Jurisdiction. A ruling made in the absence of subject matter jurisdiction is a nullity.
8. Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter.
9. Judgments: Collateral Attack. Only a void judgment is subject to collateral attack.
10. Jurisdiction: Appeal and Error. Generally, once an appeal has been perfected, the trial court no longer has jurisdiction.
11. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.
12. Alimony: Statutes: Words and Phrases. The word “support” in Neb.Rev.Stat. § 42–351(2) (Reissue 2008) includes spousal support, i.e., alimony.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Kent A. Schroeder, Kearney, and Luke M. Simpson, of Ross, Schroeder & George, L.L.C., for appellant.
Mitchel L. Greenwall, Kearney, of Greenwall, Bruner & Frank, L.L.C., for appellee.
This case involves the appeal from an order of contempt stemming from a dissolution of marriage proceeding. Roger Paul Spady (Paul) appeals the order of the district court for Adams County in which the court found Paul to be in contempt for failing to obey the court's order to pay temporary alimony and for failing to appear at the contempt hearing. Paul argues that the court did not have jurisdiction to order him to pay temporary alimony when an appeal of the decree of dissolution was pending. Paul contends that the temporary alimony order is void and that he cannot be properly found to be in violation of such order. He also asserts that his failure to appear at the contempt hearing was due to his doctor's order that he should not travel while recovering from major surgery and that the district court erred when it found him in contempt on the basis that he failed to appear for the hearing. Because the district court had jurisdiction to issue the temporary alimony order, it is not void. Thus, Paul is subject to contempt for violating the order to pay temporary alimony, and the finding of contempt was not error. As explained below, it is not necessary for us to review the finding of contempt for failure to appear. We affirm.
Paul and Carolyn Jean Spady were married in 1966. Carolyn filed for dissolution of the marriage in 2004. The parties' children had reached the age of majority, and so the issues for trial generally involved valuation and division of the marital estate. On January 25, 2006, while dissolution proceedings were pending, the district court entered an order requiring Paul to pay temporary alimony for the benefit of Carolyn in the amount of $13,500 per month commencing January 1, 2006, and “every month thereafter during the pendency of this action.”
After a trial and various other proceedings, the court on January 20, 2011, entered a decree dissolving the marriage and dividing the marital estate. In the decree of dissolution, the court stated the following with regard to alimony:
[Paul] shall pay alimony to [Carolyn] in the amount of one dollar per year starting on the first month after this Decree becomes final and be due each year for five years. Alimony shall terminate upon the death of either party or remarriage of [Carolyn] or payment in full of the Judgment on behalf of [Carolyn]. The temporary alimony shall remain in effect until this Decree becomes final.
Paul filed a motion to alter or amend the decree. The court overruled the motion. Paul timely filed a notice of appeal on April 1, 2011. That case became a previous appeal, case No. A–11–271, before the Nebraska Court of Appeals.
On May 17, 2011, the district court ordered that Paul post a supersedeas bond in a designated amount effective July 7, 2011. No bond was posted.
On June 7, 2011, while the appeal was pending before the Court of Appeals but before the parties filed their appellate briefs, Carolyn filed a motion asking the district court to award her temporary alimony pending the appeal. In her motion, Carolyn asserted that Paul had not paid alimony as directed in the decree.
On June 22, 2011, Paul filed his appellate brief in case No. A–11–271. Paul assigned errors relating to the division of property in the decree. Notwithstanding the provision of alimony in Carolyn's favor in the decree and the dispute regarding alimony as evidenced by Carolyn's motion filed June 7, Paul did not assign error regarding alimony. Paul also did not assign error regarding the bond. Carolyn filed her appellee brief in case No. A–11–271 on August 3, and Paul was granted leave to exceed page limitations and filed his reply brief on August 17.
During the pendency of the appeal, the district court took up Carolyn's motion and filed an order on June 28, 2011, which awarded Carolyn temporary alimony. It is the violation of this order which gives rise to the contempt order which is the subject of the instant appeal. In its June 28 order, the district court referred to the portion of the decree of dissolution quoted above regarding temporary alimony and said that it had included the temporary alimony provision in favor of Carolyn because Paul had control of all the income producing property and would continue to have control during the period of appeal. The court stated that the decree had not become final and that temporary alimony of $13,500 per month remained in effect until there was a final order from the Court of Appeals. However, the court went on to note that Carolyn had new sources of income totaling $1,376 per month that were not previously available; the court found that appropriate temporary alimony during the appeal period would be $12,124 per month, representing the previously ordered monthly alimony less Carolyn's new sources of monthly income. The court therefore ordered Paul to pay Carolyn temporary alimony in the amount of $12,124 per month effective July 1, 2011. Neither party appealed the June 28 order.
The appeal of the decree of dissolution in case No. A–11–271 was submitted to the Court of Appeals. In its opinion, the Court of Appeals considered the issues which had been raised by Paul in his assignments of error. Those matters were limited to property issues. The Court of Appeals affirmed the challenged property division matters contained in the decree of dissolution in a memorandum opinion filed February 14, 2012. See Spady v. Spady, No. A–11–271, 2012 WL 502702 (Neb.App. Feb. 14, 2012) (). A petition for further review was denied by the Nebraska Supreme Court on May 16, 2012, thus concluding the appeal in case No. A–11–271.
During the pendency of the appeal in case No. A–11–271, on October 5, 2011, Carolyn filed in the district court a motion for an order for Paul to show cause why he should not be held in contempt for violating the temporary alimony orders of that court. She alleged that since December 29, 2010, Paul had paid only $1 toward the ordered temporary support. She asserted that by virtue of the initial temporary alimonyaward which was embodied in the January 2011 decree, unpaid temporary alimony had continued to accrue at the rate of $13,500 per month from January 1 through July 1, 2011. She further asserted that by virtue of the June 28, 2011, order, unpaid temporary alimony had accrued at the rate of $12,124 per month from July 1 through the date of her filing. Carolyn alleged that Paul owed her $129,495 in unpaid temporary alimony plus interest, less the $1 he had paid.
On October 6, 2011, the court entered an order that Paul should appear before the court on December 13 to show cause why he should not be held in contempt for his failure to obey the court's orders. A summons and the order to show cause were personally served on Paul in Nebraska on October 7.
Paul did not personally appear at the December 13, 2011, contempt hearing. Counsel appeared on Paul's behalf. With respect to his failure to appear, Paul's counsel stated that Paul was recovering from surgery and that Paul intended...
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