Stonerook v. Green

CourtCourt of Appeals of Nebraska
PartiesCHRISTOPHER W. STONEROOK, APPELLANT, v. TONY GREEN ET AL., APPELLEES.
Docket NumberNo. A-15-394.,A-15-394.
Decision Date17 May 2016

CHRISTOPHER W. STONEROOK, APPELLANT,
v.
TONY GREEN ET AL., APPELLEES.

No. A-15-394.

NEBRASKA COURT OF APPEALS

May 17, 2016


MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lincoln County: DONALD E. ROWLANDS, Judge. Affirmed.

Christopher W. Stonerook, pro se.

Douglas J. Peterson, Attorney General, and Danielle Jones, for appellees Tony Green, Byron Van Patten, and Troy Reiners.

Claudine K. Thorne, Deputy Lincoln County Attorney, pro se, and for appellee Rebecca Harling.

MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

Christopher W. Stonerook appeals from the order of the district court for Lincoln County, which dismissed his complaint for permanent injunction with prejudice. For the reasons set forth herein, we affirm.

II. BACKGROUND

In September 2001, Stonerook was found to be the biological father of a minor child born in May 1997 and was ordered to pay child support of $500 per month to child's mother, Sheila R.

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Clark. The order subjected Stonerook to income withholding if he became delinquent on his child support obligation. Physical custody of the child was granted to Clark.

In October 2013, Stonerook filed a pro se complaint to modify custody and child support in the paternity case. As of April 8, 2015, when the dismissal order was entered in the present case, the modification complaint in the paternity case had not yet been set for hearing.

On February 3, 2015, Stonerook filed a complaint for permanent injunction under a separate case number from the paternity case, naming as defendants six individuals in their official capacities with the Nebraska Department of Health and Services' Division of Children and Family Services and Child Support Enforcement, the Nebraska Child Support Payment Center, and attorneys with the Lincoln County Attorney's office (collectively "the Appellees"). Stonerook alleged that after having been awarded Social Security disability benefits, he learned that his benefits were being garnished in the amount of $750 per month by the Nebraska Child Support Enforcement Office. He also learned that his Social Security disability award for back pay in the amount of approximately $14,000 had been seized due to his child support being in arrearage. Stonerook alleged that he made further inquiries and was told that he was $3,026 in arrears and that his monthly child support had increased to $750 per month. He alleged that after additional inquiry, he was advised that the child support garnishment amount withheld from his disability benefits could be reduced to $505 but "nothing else would be done until the custodial parent showed the Child Support Office in North Platte proof the minor child was receiving dependent benefits." Stonerook sought a permanent injunction preventing the Appellees from seizing funds from his Social Security disability benefits and back pay award without allowing him an opportunity to appeal any seizure of funds he disputes. He also filed a motion for temporary restraining order to enjoin the Appellees from "disbursing any type of payment from the funds seized."

The transcript includes an "INCOME WITHHOLDING FOR SUPPORT" form document filed on February 5, 2015 in the paternity case. The document identifies Stonerook as the "Employee/Obligor," Clark as the "Custodial Party/Obligee," and the Social Security Administration as the "Employer/Income Withholder" and orders the withholding of a lump sum payment of $3,526.79 to be remitted to the Nebraska Child Support Payment Center.

The Appellees filed motions to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), seeking dismissal of Stonerook's complaint for failure to state a claim upon which relief may be granted. The record on appeal does not include a copy of appellee Chawnta Durham's motion to dismiss.

On April 3, 2015, Stonerook filed a pleading opposing the motions to dismiss. In it, he summarized the allegations of his complaint and also alleged that after his complaint had been filed, "the Child Support Enforcement Office sent funds at the heart of this case to the custodial parent."

On April 6, 2015, the district court heard argument from the parties on the motions to dismiss. The hearing was held in the judge's chambers. Stonerook was present and appeared pro se. Appellees Tony Green, Byron Van Patten, and Troy Reiners were represented by their attorney, an Assistant Attorney General, who appeared by telephone. Appellees Rebecca Harling and Claudine K. Thorne were represented by Thorne, a Deputy County Attorney. Appellee Durham was present and represented by her attorney. No sworn testimony was given and no exhibits were

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offered and received into evidence, although the court took judicial notice of the court file in the underlying paternity case and of the return of service upon Harling and Thorne. Arguments were made by all of the parties on the record. At the hearing, Stonerook did not contest the representation by Durham's attorney that Durham is now in private practice and no longer employed by the county attorney's office, but he argued that she was employed there during a portion of the relevant period and that he needed time to do discovery on the issue. The district court granted Durham's motion to dismiss during the hearing and took the remaining motions under advisement. We have set forth further details of the hearing relevant to Stonerook's arguments on appeal in the analysis section below.

On April 8, 2015, the district court entered an order granting the motions to dismiss. The court noted its dismissal of Durham from the case with prejudice and then set forth its findings with respect to the remaining motions to dismiss. The court noted that during the hearing, Stonerook did not contest the fact that the alleged arrearage in the underlying child support case in the approximate amount of $3,500 had already been disbursed to Clark. The court found that a request for injunction does not afford a remedy for what has already occurred, and accordingly, dismissed any portion of the complaint for permanent injunction filed by Stonerook which sought to prevent or enjoin seizure of a portion of his Social Security disability award for the payment of his child support arrearage. With regard to the portion of the complaint seeking to prohibit the seizure of future disability payments to pay current child support as it becomes due, the court found that dismissal was also appropriate as Stonerook had another adequate remedy at law available; namely his pending complaint to modify custody and child support in the underlying action. The court dismissed the complaint with prejudice.

III. ASSIGNMENTS OF ERROR

Stonerook asserts, reordered, that the district court erred in (1) holding the hearing in chambers, excluding the public from the hearing, (2) allowing evidence or testimony to be presented in a telephonic hearing on the motions to dismiss, (3) interrupting Stonerook when he presented oral arguments, (4) taking judicial notice of documents without allowing Stonerook the opportunity to object, (5) holding Stonerook to the same standards as an attorney when appearing pro se before the court, (6) dismissing Durham from the case with prejudice, (7) failing to accept the plain meaning of a statute, (8) failing to follow the rule of stare decisis in its order, (9) ruling that because the seizure of Stonerook's disability benefits had been disbursed the complaint for injunction must be dismissed, (10) finding that Stonerook had another remedy at law and that the complaint to modify custody and child support is the proper remedy, and (11) granting the motions to dismiss and dismissing the case with prejudice.

IV. STANDARD OF REVIEW

A district court's grant of a motion to dismiss is reviewed de novo. Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388 (2016). When reviewing an order dismissing a complaint, an appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusion. Id. To prevail against a motion to dismiss for failure to state a claim, a

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plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. Id. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim. Id.

V. ANALYSIS
1. CONDUCT OF HEARING
(a) Exclusion of Public

Stonerook asserts that the district court erred in holding the hearing in chambers, thereby excluding the public from the hearing, in violation of Neb. Ct. R. §§ 6-201 to 6-206. Although many of the provisions in these guidelines are directed toward ensuring that a criminal defendant receives a fair hearing, pursuant to Neb. Rev. Stat. § 24-1001 (Reissue 2008), "All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specially provided by statute."

Stonerook does not argue that the public was in fact excluded from the hearing, and there is nothing in the record to suggest that this occurred. In his brief on appeal, Stonerook references events occurring prior to the start of the hearing. He notes that he needed assistance from another individual to carry his papers. He states that this individual was not allowed in the judge's chambers for the hearing. However, none of the information about this individual's exclusion is contained in the bill of exceptions for the hearing. An appellate brief generally may not expand the evidentiary record and...

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