Welch v. Welch

• Decision Date: 22 July 1994
• Docket Number: No. S-92-883,S-92-883
• Citation: 519 N.W.2d 262,246 Neb. 435
• Parties: Diane L. WELCH, Appellee and Cross-Appellant, v. Richard A. WELCH, Jr., Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 262

519 N.W.2d 262

246 Neb. 435

Diane L. WELCH, Appellee and Cross-Appellant, v. Richard A. WELCH, Jr., Appellant and Cross-Appellee.

No. S-92-883.

Supreme Court of Nebraska.

July 22, 1994.

Syllabus by the Court

1. Motions for New Trial: Appeal and Error. If an appellant has assigned errors properly presented in a motion for new trial, then the appellant need not also assign as error the overruling of the motion for new trial.

2. Motions for New Trial: Appeal and Error. An appellate court will affirm the district court's denial of a motion for new trial absent an abuse of discretion.

3. Judgments: Equity: Time. A litigant seeking the vacation of a prior decree or judgment after term may take one of two routes. The litigant may proceed either under Neb.Rev.Stat. § 25-2001 (Reissue 1989) or under the district court's independent equity jurisdiction.

4. Attorneys at Law: Fraud. A party should not be forced to answer for the fraud of opposing counsel.

5. Attorney and Client: Fraud. If anyone must lose because of the fraud of a lawyer, it should be the party who selected and employed that lawyer as his counsel.

6. Attorney and Client. A litigant is not responsible for the acts of an attorney that he has not hired. However, a litigant is responsible, as against his opponent, for the acts of an attorney that he has hired.

7. Courts: Justiciable Issues. A court decides real controversies and determines rights actually controverted, and does not address or dispose of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting.

8. Courts: Jurisdiction. The existence of an actual case or controversy is necessary for the exercise of judicial power in Nebraska.

9. Jurisdiction: Words and Phrases. Jurisdiction is a court's power or authority to hear a case.

10. Child Support: Modification of Decree: Appeal and Error. An appellate court reviews modifications of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion.

11. Child Support: Visitation. A failure to pay child support does not justify a parent's unilateral withdrawal of visitation rights, and a failure to allow visitation does not justify a parent's unilateral nonpayment of support.

12. Child Support. The power of a court to suspend child support should be exercised only as a last resort or where it is apparent that to do so affords the only remedy that can reasonably be expected to fit the mischief.

13. Child Support: Visitation. A court may suspend child support payments when the custodial parent deprives the noncustodial parent of visitation and there is no showing that the children are in need.

14. Appeal and Error. As to matters of law, an appellate court has an obligation to reach its own independent conclusion.

15. Child Support: Interest: Time. Under Neb.Rev.Stat. § 42-358.02 (Reissue 1988), prior to September 6, 1991, interest on delinquent child support payments accrued at a rate determined by Neb.Rev.Stat. § 45-104.01 (Reissue 1988).

16. Child Support: Interest: Time. Under Neb.Rev.Stat. § 42-358.02 (Cum.Supp.1992) as of September 6, 1991, interest on delinquent child support payments accrues at a rate determined by Neb.Rev.Stat. § 45-103 (Reissue 1988).

17. Estoppel. When a person, knowing her rights, takes no steps to enforce those rights until the adverse party has, in good faith, changed his position such that he could not be restored to his former state if the rights are enforced, the delay becomes inequitable and the person is estopped from asserting the rights.

18. Courts: Equity: Judgments: Interest. A court of equity has discretion to allow or withhold interest as is reasonable and just, except in cases where interest is recoverable as a matter of right.

19. Courts: Equity: Judgments: Interest. A court of equity does not have discretion to withhold interest on decrees or judgments for the payment of money.

20. Judgments. A decree or judgment for the payment of money is one which is immediately due and collectible where its nonpayment is a breach of duty on a judgment debtor.

Richard A. Welch, Jr., pro se, and, on brief, George T. Babcock, of Babcock & Associates, Omaha, for appellant.

Curtis A. Sikyta, Ord, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

WHITE, Justice.

This case arises from a decree of dissolution and a series of related motions. In January 1988, Diane Dugan (Dugan), then known as Diane L. Welch, filed a petition for dissolution of her marriage to Richard A. Welch, Jr. (Welch). Welch filed a special appearance, a motion to transfer jurisdiction to Illinois (his claimed state of legal residence), and a motion for a stay under the Soldiers' and Sailors' Civil Relief Act. The district court denied the special appearance, finding that it had jurisdiction over Welch, and denied both motions.

In November 1988, the court entered its decree of dissolution. The decree awarded custody of the parties' two minor children to Dugan and awarded Dugan $280.80 per month in child support. The decree ordered Welch to maintain health and dental coverage for the children, and provided that Dugan would be responsible for any sums not covered by the insurance. The decree also awarded Dugan $1,500 in attorney fees and $583 in travel expenses. The remaining portions of the decree are not relevant to the present appeal. The decision was not appealed.

In June 1991, represented by a new attorney, Welch filed a "cross-petition" which alleged that his divorce attorney had committed various acts of fraud. Welch requested that the court vacate the divorce decree. The parties and the court have treated this cross-petition as a motion to vacate, and we will do likewise. In October 1991, Dugan demurred to the motion to vacate, and Welch filed a motion for a continuance.

On November 12, 1991, the district court held a hearing on Welch's motion to vacate. The court overruled the demurrer, denied the motion for a continuance, and denied the motion to vacate.

There followed a series of three motions. Welch timely filed a motion for new trial and also filed a motion to determine sums due. Dugan filed a motion, under the Nebraska Child Custody Jurisdiction Act (NCCJA), Neb.Rev.Stat. § 43-1201 et seq. (Reissue 1988), to transfer jurisdiction to Colorado, where she and the children had moved.

On August 31, 1992, the district court held a hearing on the three motions. The court denied Welch's motion for new trial, determined various sums due, and granted Dugan's motion to transfer jurisdiction. Welch appealed and Dugan cross-appealed. Under our authority to regulate the caseloads of the appellate courts of this state, we removed the case to this court.

On appeal, Welch asserts that the district court erred in failing to vacate the decree and in transferring jurisdiction to Colorado. On cross-appeal, Dugan asserts that the district court erred in determining the sums due with respect to child support, fees, and costs. We address each alleged error in turn.

Welch has assigned as error the district court's failure to vacate the decree. Welch's notice of appeal is not timely with respect to the court's denial of his motion to vacate. Technically, then, this assignment of error is incorrect.

Welch's technical mistake is not fatal. If an appellant has assigned errors properly presented in a motion for new trial, then the appellant need not also assign as error the overruling of the motion for new trial. See Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944). Welch's motion for new trial alleges that the denial of his motion to vacate was contrary to law. Therefore, Welch has preserved the substantive issue of vacating the decree for our review and has adequately assigned the error.

The district court's failure to vacate the decree arrives before this court by way of Welch's motion for new trial, which was denied. An appellate court will affirm the district court's denial of a motion for new trial absent an abuse of discretion. Kopecky v. National Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994); Wolfe v. Abraham, 244 Neb. 337, 506 N.W.2d 692 (1993). To determine whether the district court correctly denied Welch's motion for new trial, we must determine whether, as Welch contends, the district court's failure to vacate the decree was contrary to law.

Welch first argues that the court should have vacated the decree based on various acts of fraud committed by his divorce attorney. A litigant seeking the vacation of a prior decree or judgment after term may take one of two routes. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994). The litigant may proceed either under Neb.Rev.Stat. § 25-2001 (Reissue 1989) or under the district court's independent equity jurisdiction. DeVaux, supra. See, Joyce v. Joyce, 229 Neb. 831, 429 N.W.2d 355 (1988); Emry v. American Honda Motor Co., 214 Neb. 435, 334 N.W.2d 786 (1983). Welch concedes that his action does not fall within the confines of § 25-2001 and therefore that he may proceed, if at all, under the court's general equity jurisdiction.

Welch alleges that his divorce attorney committed numerous fraudulent acts. The first set of allegedly fraudulent acts revolves around a special appearance. Welch testified that he initially hired his divorce attorney to enter a special appearance contesting jurisdiction. Through what appears to have been a typographical error, the divorce attorney filed a special appearance consenting to jurisdiction. Realizing the error, the divorce attorney asked the district court for leave to amend the special appearance. The district court found that Welch had consented to jurisdiction and also that by asking for affirmative relief, Welch had subjected himself to the jurisdiction of the court. Welch testified that his divorce attorney failed to advise him of the flawed special appearance and instead told him that the judge...