Wilson v. Wilson, A–14–081

• Court: Court of Appeals of Nebraska
• Writing for the Court: Irwin, Judge.
• Citation: 867 N.W.2d 651
• Parties: Christine A. Wilson, appellant, v. Terry P. Wilson, appellee.
• Docket Number: No. A–14–081,A–14–081
• Decision Date: 28 July 2015

867 N.W.2d 651

Christine A. Wilson, appellant
v.
Terry P. Wilson, appellee.

No. A–14–081

Court of Appeals of Nebraska.

Filed July 28, 2015

Catherine Dunn Whittinghill, of Welch Law Firm, P.C., for appellant.

Adam E. Astley, of Slowiaczek, Albers & Astley, P.C., L.L.O., for appellee.

Moore, Chief Judge, and Irwin and Bishop, Judges.

Syllabus by the Court

1. Constitutional Law: Rules of the Supreme Court.The Nebraska Constitution provides that the Supreme Court may promulgate rules of practice and procedure for the effectual administration of justice and the prompt disposition of judicial proceedings.

2. Rules of the Supreme Court: Appeal and Error.The rules of practice and procedure adopted by the Supreme Court address, among other topics, the procedure for appealing decisions of the district court and for properly presenting errors allegedly committed by the district court to the appellate court for review and disposition.

3. Rules of the Supreme Court: Appeal and Error.Parties who wish to secure appellate review of their claims must abide by the rules of the Nebraska Supreme Court. Any party who fails to properly identify and present its claim does so at its own peril.

4. Rules of the Supreme Court: Appeal and Error.Neb. Ct. R.App. P. § 2–109(D)(1)(d), (e), and (f) (rev. 2012) requires a separate section for assignments of error, designated as such by a heading, and also requires that the section be located after a statement of the case and before a list of controlling propositions of law.

5. Rules of the Supreme Court: Appeal and Error.Neb. Ct. R.App. P. § 2–109(D)(1)(e) (rev. 2012) requires that the assignments of error section include a separate and concise statement of each error the party contends was made by the trial court.

6. Rules of the Supreme Court: Appeal and Error.Each assignment of error shall be separately numbered and paragraphed, bearing in mind that consideration of the case will be limited to errors assigned and discussed.

7. Rules of the Supreme Court: Appeal and Error.Where a party fails to

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comply with the court rules requiring a separate section setting forth the assignments of error, an appellate court may proceed as though the party failed to file a brief entirely or, alternatively, may examine the proceedings for plain error.

8. Appeal and Error.The decision to proceed on plain error is at the discretion of the appellate court.

9. Appeal and Error.Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

10. Rules of the Supreme Court: Appeal and Error.Assignments of error consisting of headings or subparts of the argument section do not comply with the mandate of Neb. Ct. R.App. P. § 2–109(D)(1)(e) (rev. 2012).

11. Appeal and Error.Plain error exists where there is error, plainly evident from the record but not complained of at trial, that prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

12. Appeal and Error.Where an issue is raised and complained of at trial, it cannot be the basis of a finding of plain error on appeal.

Irwin, Judge.

I. INTRODUCTION

Christine A. Wilson appeals from an order of the district court for Douglas County, Nebraska, modifying the court's prior decree dissolving her marriage to Terry P. Wilson. On appeal, Christine argues that the court erred in modifying the decree, but she has not presented any assignments of error as clearly required by Neb. Ct. R.App. P. § 2–109(D)(1)(e) (rev. 2012). As a result, we review only for plain error and, finding none, we affirm.

II. BACKGROUND

This is the third appearance of this case before this court. On June 25, 2010, we dismissed one appeal, case No. A–10–490,

for lack of jurisdiction. Then, in Wilson v. Wilson, 19 Neb.App. 103, 803 N.W.2d 520 (2011), we reversed an order of the district court in which the court effectively modified the dissolution decree without following the appropriate procedures for bringing and resolving an application to modify the decree.

As we noted in our opinion in Wilson, the dissolution decree entered by the district court included division of, among other items, an “ ‘Oppenheimer’ ” fund, a “ ‘SEP/IRA’ ” fund, and equity in the parties' marital home and another parcel of real property; provided that each party was to receive one-half of the value of the Oppenheimer fund, that each party was to receive one-half of the SEP/IRA fund, and that Christine was to receive 40 percent of the net equity in the marital home and a share of the equity in the other parcel of real property; and ordered Christine to pay certain marital debt. 19 Neb.App. at 104, 803 N.W.2d at 522. The court also ordered Christine to vacate the marital

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home by October 31, 2009, or whenever the property was sold, whichever occurred first. There was no appeal from the decree.

Christine failed to vacate the marital home by October 31, 2009, as ordered in the decree. In February 2010, Terry filed a motion requesting the court to determine amounts due under the decree and asserting that he had been required to make additional mortgage payments as a result of Christine's failure to vacate. At a hearing on Terry's motion, Terry presented the district court with an exhibit in which he calculated what Christine had been awarded in the decree and proposed subtracting from that award amounts he had allegedly incurred as a result of Christine's failure to vacate the marital home as ordered in the decree, as well as various temporary support payments he had made to Christine. Terry's calculations would have resulted in Christine's receiving nearly $30,000 less than she had been awarded in the decree.

The district court sustained Terry's motion to determine amounts due and found Christine in contempt for her failure to vacate the marital home as ordered in the decree. In

Wilson,supra , we agreed with Christine that the district court's order amounted to a modification of the dissolution decree without following the proper procedures for a modification proceeding, and we reversed, and remanded.

After the matter was remanded to the district court, Terry filed a complaint to modify the decree of dissolution. Terry alleged a material change of circumstances had occurred “[s]ince the time of trial.” Terry alleged that the material change of circumstances included a delay in the entry of the court's decree that resulted in Terry's being obligated under a temporary order longer than the trial court had intended, Christine's failure to vacate the marital home, Christine's failure to cooperate in the sale of the marital home, Christine's neglect or deliberate damage to the marital home that resulted in diminution of the value received in sale, and Terry's continued payment of the mortgage on the marital home and distribution of funds to Christine out of the Oppenheimer fund.

A trial was held on Terry's complaint for modification. After the trial, the district court entered an order modifying the decree. In its order, the district court found that this court's opinion in Wilson v. Wilson, 19 Neb.App. 103, 803 N.W.2d 520 (2011), “did not question the substance of the relief granted” by the district court's prior sustaining of Terry's motion to determine amounts due, “but the procedure used by [Terry's] prior counsel” to gain that relief.

The district court concluded that this court's opinion in Wilson, supra, “indicated that the allegations raised by [Terry in the motion to determine amounts due] constituted a material change in circumstances” and concluded that this was “a final Appellate Order” which was “both mandatory Vertical Stare Decisis, and the Law of the Case in this case and ... binding on [the district court].” The district court held that this court's opinion in Wilson, supra, “in referring to this case as one of a change of circumstances is Res Judicata, as [Christine] elected not to pursue a Petition for Further Review by the Nebraska Supreme Court.”

The district court further held that Terry's complaint for modification of the decree “does allege a change in circumstances, and that predicated upon that new pleading, the Decree should be modified in accordance with that change in circumstances.” The court concluded that not modifying the decree to take into account ongoing payments under the temporary order pending entry of the decree and

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Christine's failure to vacate the marital home as ordered in the decree would result in a significant windfall to her, and the court modified the decree.

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