Friedman v. Friedman ( 2015 )

Nebraska Advance Sheets
FRIEDMAN v. FRIEDMAN 973
Cite as 290 Neb. 973
2. Dismissal of Determan
In their second assignment of error, Appellants challenge
the district court’s decision to sustain Determan’s motion to
dismiss for failure to state a claim. Specifically, they argue
that the court erred in its determination that Determan owed no
duty to Appellants and thus was an improper party to a man-
damus action.
[7] To prevail against a motion to dismiss for failure to state
a claim, a plaintiff must allege sufficient facts, accepted as true,
to state a claim for relief that is plausible on its face. Lindner
v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013). Appellants’
claim against Determan rested entirely on the presumption
that after Determan initiated judicial foreclosure proceedings,
they were still entitled to redeem their property in the manner
prescribed by § 77-1824. For the reasons explained above, that
presumption was erroneous. As a matter of law, once the fore-
closure action was pending, Appellants could not redeem their
property under § 77-1824. As such, Appellants’ claim against
Determan was not plausible on its face. The district court did
not err in dismissing the complaint against Determan for fail-
ure to state a claim.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court which entered summary judgment in favor of the
Treasurer and sustained Determan’s motion to dismiss for fail-
ure to state a claim.
Affirmed.
Bruce R. Friedman, appellant, v.
Susan C. Friedman, appellee.
___ N.W.2d ___
Filed May 22, 2015. No. S-14-710.
1. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
Nebraska Advance Sheets
974 290 NEBRASKA REPORTS
2. Jurisdiction: Pleadings: Parties. A party will be deemed to have appeared
generally if, by motion or other form of application to the court, he or she seeks
to bring its powers into action on any matter other than the question of jurisdic-
tion over that party.
3. Service of Process: Waiver. A general appearance waives any defects in the
process or notice, the steps preliminary to its issuance, or in the service or
return thereof.
4. Due Process: Service of Process. A general appearance waives any due process
objection based on inadequate service of process.
5. Foreign Judgments: Jurisdiction: Collateral Attack. Under Neb. Rev. Stat.
§ 25-1587.03 (Reissue 2008) of the Uniform Enforcement of Foreign Judgments
Act, collateral attacks on a final, foreign judgment are generally limited to claims
that the judgment was void, such as for lack of jurisdiction over the person or the
subject matter.
6. Foreign Judgments: Records. If the amount of a foreign judgment cannot be
ascertained without resorting to facts outside the record of the foreign court, it
cannot be registered under the Uniform Enforcement of Foreign Judgments Act.
7. Divorce: Jurisdiction: Equity. District courts in domestic dissolution actions
retain equitable jurisdiction to determine amounts due under an ambigu-
ous decree.
8. Foreign Judgments. The Uniform Enforcement of Foreign Judgments Act has no
provision for modification or alteration of a foreign judgment, decree, or order.
9. Judgments: Appeal and Error. Whether a judgment is ambiguous is a question
of law for which the appellate court has an obligation to reach a conclusion inde-
pendent from the lower court’s conclusion.
10. Right to Counsel: Effectiveness of Counsel. A pro se litigant will receive the
same consideration as if he or she had been represented by an attorney, and,
concurrently, that litigant is held to the same standards as one who is represented
by counsel.
11. Effectiveness of Counsel: Appeal and Error. Pro se litigants, like any other,
may not present issues, arguments, and theories for the first time on appeal.
12. Appeal and Error. A lower court cannot commit error in resolving an issue
never presented and submitted to it for disposition.
13. Rules of the Supreme Court: Appeal and Error. Under Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2014), a party filing a cross-appeal must set forth a separate
division of the brief prepared in the same manner and under the same rules as the
brief of appellant.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Bruce R. Friedman, pro se.
Karl Von Oldenburg, of Brumbaugh & Quandahl, P.C.,
L.L.O., for appellee.
Nebraska Advance Sheets
FRIEDMAN v. FRIEDMAN 975
Cite as 290 Neb. 973
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
The ex-husband appeals from an order generally overruling
his objections to garnishment upon a foreign dissolution decree.
The ex-husband asserts that he was not properly notified of the
registration of the foreign judgment or of the garnishment, that
the court should have declared the amount of the foreign judg-
ment to be lower than what was sought by his ex-wife, and that
the court inadequately addressed the percentage of his wages
that should be garnished. We affirm.
BACKGROUND
On May 7, 2014, Susan Roggentine, also known as Susan C.
Friedman (Roggentine), filed in the district court for Douglas
County an affidavit for registration of a foreign judgment.
According to the affidavit, Roggentine sought to enforce a
total of $160,458.49 awarded in a Colorado dissolution decree
against her ex-husband, Bruce R. Friedman. According to the
affidavit, the award consisted of $145,243.49, plus $15,215 in
court-awarded attorney fees, for a total of $160,458.49.
A certified copy of the decree, dated October 26, 2011, was
attached to the affidavit. In the decree, the Colorado court
ordered that Friedman pay Roggentine $100,000 in the divi-
sion of assets and deliver to Roggentine described items of
personal property and the title to specified vehicles. The court
ordered that Friedman reimburse Roggentine for $45,243.49
that Friedman induced Roggentine to withdraw from her indi-
vidual retirement account to pay Friedman’s nondischargeable
debts. The court awarded spousal maintenance in the amount
of $2,000 per month for 12 months, but found that Friedman’s
default on $10,399 in temporary maintenance obligations justi-
fied that maintenance be awarded in a lump sum of $34,399.
The court ordered Friedman to pay $15,215 in attorney fees
and $850 in costs.
In the conclusion of the order, the Colorado court entered
judgment in favor of Roggentine in the amount of $34,399, as
Nebraska Advance Sheets
976 290 NEBRASKA REPORTS
of November 1, 2011. The court further ordered Friedman to
pay Roggentine $145,243.49 in cash or certified funds within
30 days of the court’s order and ordered Friedman to pay the
balance of attorney fees in the amount of $15,215 and costs of
$850. Mathematically, these listed sums total $195,707.49. The
order itself does not purport to set forth a total summation of
the various amounts awarded.
The affidavit in support of registration of the foreign judg-
ment set forth as Friedman’s last known address the correct
house number corresponding to the address where he lived,
but the street number stated 188th Street. Friedman actually
lived on 118th Street. Accordingly, subsequent to the filing of
the foreign judgment, the clerk of the court sent notice to the
incorrect address. The notice was returned as undeliverable.
On June 20, 2014, Roggentine filed an affidavit and prae-
cipe for summons in garnishment after judgment. This listed
Friedman’s correct address and stated that the amount due
on the judgment was $160,458.49, plus costs in the amount
of $101.12, for a total of $160,559.61. The affidavit set forth
that Friedman was not the head of a family for purposes of the
percentage of disposable earnings subject to garnishment under
Neb. Rev. Stat. § 25-1558 (Reissue 2008).
Roggentine asked that the summons in garnishment be
issued by certified mail to Friedman’s employer. Friedman’s
employer received the summons and order of garnishment in
aid of execution on June 30, 2014. Although the summons/
garnishment order lists the incorrect 188th Street address for
Friedman, the certified mail receipts found in the transcript
appear to show that it was sent to Friedman via certified mail
to the correct address. The record does not reflect Friedman’s
receipt of that mailing, however.
On July 11, 2014, Friedman filed in the district court a pro
se “Ex-Parte Motion to Quash,” “Objection to Registration
of Foreign Judgment,” and “Objection to Garnishment.” In
the motion, Friedman alleged that he never received notice
of the filing of the foreign judgment or of the garnishment
until notified by his employer’s payroll processor “via regular
Nebraska Advance Sheets
FRIEDMAN v. FRIEDMAN 977
Cite as 290 Neb. 973
postal mail” on July 7, 2013. Friedman alleged he was there-
fore “neglected of his opportunity” to object to the judgment
Roggentine was attempting to register and to object to the gar-
nishment of his wages.
In the motion, Friedman requested a hearing to challenge the
allegation that he was not the head of a family for purposes of
the garnishment calculation. Friedman also asked that the court
quash the garnishment on the grounds that Roggentine had
failed to (1) notify the clerk of his proper address when filing
the foreign judgment, (2) mail the notice of the garnishment by
certified mail to his correct address, and (3) certify to the court
that she had complied with Neb. Rev. Stat. § 25-1011 (Cum.
Supp. 2014).
Friedman received a hearing on his motion on July 18,
2014. At the hearing, Friedman first complained of the lack of
notice and proper service of process. He argued in this regard
that Roggentine could not garnish his wages, because she had
failed to satisfy the statutory notice requirements. He also indi-
cated his belief that Roggentine had purposefully provided the
wrong address.
Second, Friedman challenged the amount of the foreign
judgment that was registered, and which served as the basis
for the garnishment. Friedman claimed he was obligated to
pay only $149,000 under the foreign order. However, Friedman
admitted he had made no payments to Roggentine pursuant
to that order. Friedman also indicated that the order had been
affirmed on appeal.
On this second point, the court—apparently adding up only
the amounts awarded on the last page of its conclusion—stated
that the order plainly totaled $160,000. Friedman admitted that
was “what it says at the bottom of the document.” The court
responded that because the award was affirmed on appeal,
“that’s what you’re stuck with.”
Finally, Friedman explained the reasons he ought to be
considered head of a family for purposes of any garnishment.
Roggentine’s counsel responded that Roggentine did not object
to Friedman’s being considered head of a family.
Nebraska Advance Sheets
978 290 NEBRASKA REPORTS
There was no indication at the hearing that Friedman had as
of that time received a garnished paycheck. Friedman claims
in his appellate brief that he had one paycheck garnished on
July 14, 2014, at the non-head-of-a-family rate of 25 percent.1
Neither party offered any exhibits at the hearing.
On August 5, 2014, the court issued the following order:
“The Court finds that [Friedman’s] objection to the registration
of a foreign document and objection to garnishment should be
overruled and denied. The Court further finds that [Friedman]
is the head of a household.” That same date, the court issued
an order for continuing lien, which was sent to Friedman’s
employer. The order stated that “there is not successful objec-
tion to garnishment filed.” The order for continuing lien does
not specify whether Friedman is head of a family. Friedman
indicates in his appellate brief that since the August 5 order, his
paycheck has been garnished at the maximum head-of-family
rate of 15 percent.2 Friedman appeals.
ASSIGNMENTS OF ERROR
Friedman assigns that the court erred in (1) denying and
overruling his objection to the registration of the foreign judg-
ment on the basis that the amount was incorrect, (2) failing to
enter a declaratory judgment setting forth the correct amount
of the foreign judgment, (3) overruling and denying his objec-
tion to the registration of the foreign judgment on the grounds
that he was denied notice and due process in relation to the
registration of the judgment, (4) allowing a garnishment to
proceed when there was no validly registered judgment, (5)
overruling and denying his objection to the garnishment and
not quashing the garnishment for lack of proper service and
on the grounds that he was denied due process and the right
to be heard prior to the garnishment of his wages, (6) allowing
the garnishment at the maximum allowable level, and (7) fail-
ing to rectify the initial amount garnished at the “‘not head of
household’” level.
1
See § 25-1558(1)(a).
2
See § 25-1558(1)(c).
Nebraska Advance Sheets
FRIEDMAN v. FRIEDMAN 979
Cite as 290 Neb. 973
STANDARD OF REVIEW
[1] On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached
by the court below.3
ANALYSIS
Notice
Friedman first argues that the garnishment order should
have been set aside, because Roggentine failed to comply
with the notice requirements of the statutes governing reg-
istration of foreign judgments and garnishments. He relat-
edly asserts that he was denied due process of law, arguing
he was denied an opportunity to be heard on the issue of
registering the Colorado judgment and on the amount of the
garnishment.
Neb. Rev. Stat. § 25-1587.04 (Reissue 2008), of the Nebraska
Uniform Enforcement of Foreign Judgments Act,4 states that at
the time of the filing of the foreign judgment, the judgment
creditor or his or her lawyer shall make and file with the clerk
of the court an affidavit setting forth the name and last-known
post office address of the judgment debtor. The clerk of the
court shall thereafter mail notice of the foreign judgment to the
judgment debtor at the address given.
Section 25-1011(1), of the attachment and garnishment stat-
utes, states that the summons and order of garnishment and
the interrogatories in duplicate, a notice to judgment debtor
form, and a request for hearing form shall be served upon the
garnishee in the manner provided for service of a summons in
a civil action.
Neb. Rev. Stat. § 25-516.01(1) (Reissue 2008) pertains
to service of a summons in a civil action. As relevant here,
§ 25-516.01(1) states that “[t]he voluntary appearance of the
party is equivalent to service.” Section 25-516.01(2) elabo-
rates that participation in the proceedings on any issue other
than the defenses of lack of jurisdiction over the person,
3
Gammel v. Gammel, 259 Neb. 738, 612 N.W.2d 207 (2000).
4
Neb. Rev. Stat. §§ 25-1587.01 to 25-1587.09 (Reissue 2008).
Nebraska Advance Sheets
980 290 NEBRASKA REPORTS
insufficiency of process, or insufficiency of services of proc­
ess, waives all such issues except as to the objection that
the party is not amenable to process issued by a court of
this state.
[2,3] We have summarized that a party will be deemed to
have appeared generally if, by motion or other form of appli-
cation to the court, he or she seeks to bring its powers into
action on any matter other than the question of jurisdiction
over that party.5 And a general appearance waives any defects
in the proc­ess or notice, the steps preliminary to its issuance,
or in the service or return thereof.6
In his motion and appearance before the lower court at the
July 18, 2014, hearing, Friedman did not simply argue that
Roggentine failed to properly serve him notice of the registra-
tion of the judgment and garnishment. He also argued that the
amount of the garnishment was incorrect.
[4] Friedman participated in the proceedings on issues other
than the defenses listed under § 25-516.01(2): lack of jurisdic-
tion over the person, insufficiency of process, or insufficiency
of services of process. Friedman thus made a general appear-
ance and waived his objections to the statutory provisions
relating to jurisdiction over his person.7 By making a general
appearance, Friedman also waived any due process objection
based on the inadequate service of process.8
Uncertainty of Amount
Friedman alternatively argues that the amount of the
Colorado judgment was so uncertain as to be unenforceable.
He argues that such unenforceability opened the door to a
5
See, Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001); Glass v.
Nebraska Dept. of Motor Vehicles, 248 Neb. 501, 536 N.W.2d 344 (1995);
McKillip v. Harvey, 80 Neb. 264, 114 N.W. 155 (1907).
6
Harris v. Eberhardt, 215 Neb. 240, 338 N.W.2d 53 (1983).
7
See, Miller v. Steichen, 268 Neb. 328, 682 N.W.2d 702 (2004); Harrold
v. Spaghetti Tree, Inc., 219 Neb. 139, 362 N.W.2d 44 (1985); Thornton v.
Thornton, 13 Neb. Ct. App. 912, 704 N.W.2d 243 (2005).
8
See, U.S. v. Vacant Land, 15 F.3d 128 (9th Cir. 1993); Nash v. Salter,
280 Mich. App. 104, 760 N.W.2d 612 (2008); Kawasaki Steel Corp. v.
Middleton, 699 S.W.2d 199 (Tex. 1985).
Nebraska Advance Sheets
FRIEDMAN v. FRIEDMAN 981
Cite as 290 Neb. 973
declaratory judgment action in the district court to decide
the correct amount of the ambiguous Colorado judgment.
He asserts that his July 11, 2014, filing should have been
liberally construed as bringing such an action for declaratory
relief and that the court should have determined the amount
due was only $149,000. Leaving aside whether a declara-
tory judgment action was properly pled, we find no merit to
these arguments.
[5] Under § 25-1587.03, a foreign judgment filed pursuant
to the Nebraska Uniform Enforcement of Foreign Judgments
Act is subject to the same procedures, defenses, and proceed-
ings for reopening, vacating, or staying as a judgment of a
court of this state and may be enforced or satisfied in like
manner. Collateral attacks on a final, foreign judgment are
thus generally limited to claims that the judgment was void,
such as for lack of jurisdiction over the person or the sub-
ject matter.9
[6] We indicated in Cockle v. Cockle10 that a foreign
judgment may be too uncertain to be enforceable under the
Nebraska Uniform Enforcement of Foreign Judgments Act.
The foreign judgment at issue in Cockle had awarded a per-
centage of future receipts, and therefore, the amount of the
judgment could not be ascertained without resorting to facts
outside the record of the foreign court.11 We held that the judg-
ment could not be registered.12
Our holding in Cockle is consistent with the general rule of
law that a judgment must be sufficiently certain in its terms
to be able to be enforced.13 The judgment must be in such a
form that a clerk is able to issue an execution upon it which
an officer will be able to execute without requiring external
proof and another hearing.14 A judgment for money must
9
See Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999). See, also,
e.g., Harvey v. Harvey, 6 Neb. Ct. App. 524, 575 N.W.2d 167 (1998).
10
Cockle v. Cockle, 204 Neb. 88, 281 N.W.2d 392 (1979).
11
Id.
12
Id.
13
See Lenz v. Lenz, 222 Neb. 85, 382 N.W.2d 323 (1986).
14
Id.
Nebraska Advance Sheets
982 290 NEBRASKA REPORTS
specify with definiteness and certainty the amount for which
it is rendered.15
[7,8] We have also said that district courts in domestic disso-
lution actions retain equitable jurisdiction to determine amounts
due under an ambiguous decree.16 But we have never directly
addressed whether such jurisdiction can be exercised over a
foreign decree pursuant to the Nebraska Uniform Enforcement
of Foreign Judgments Act. We have noted in other contexts
that the Nebraska Uniform Enforcement of Foreign Judgments
Act has no provision for modification or alteration of a foreign
judgment, decree, or order.17
[9] We need not decide in this case whether a Nebraska
court can determine amounts due under an ambiguous foreign
dissolution decree, because the Colorado judgment was not
ambiguous. Whether a judgment is ambiguous is a question of
law for which the appellate court has an obligation to reach a
conclusion independent from the lower court’s conclusion.18
Although the Colorado order is lengthy, when read carefully,
it is not susceptible of two or more reasonable but conflicting
interpretations.19 The fact that Roggentine and the district court
during the hearing apparently failed to add into their calcula-
tions the lump-sum maintenance award does not make the
judgment ambiguous.
The district court did not err in failing to find the Colorado
judgment ambiguous and declare the amount due was $149,000.
Likewise, to the extent Friedman attempts to make a separate
argument that the Colorado judgment is unenforceable because
it cannot be executed without external proof and another hear-
ing, we find no merit to this argument.
15
Id.
16
See, Wilson v. Wilson, 19 Neb. Ct. App. 103, 803 N.W.2d 520 (2011); Strunk
v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
17
See, Marshall v. Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992); Riedy v.
Riedy, 222 Neb. 310, 383 N.W.2d 742 (1986).
18
See Boyle v. Boyle, 12 Neb. Ct. App. 681, 684 N.W.2d 49 (2004).
19
See id.
Nebraska Advance Sheets
FRIEDMAN v. FRIEDMAN 983
Cite as 290 Neb. 973
Head Household/Maximum
of
Garnishment
Lastly, Friedman argues that the lower court erred in set-
ting the garnishment at the maximum statutory allowable level
when his personal circumstances justified a more moderate
garnishment. Furthermore, he argues that the court should have
returned to him the amount of the garnishment that occurred at
a non-head-of-a-family calculation in the paycheck he received
a few days before the hearing.
Neither of these issues were properly presented to the lower
court. Friedman never asked the court to remedy the garnish-
ment that had already occurred under the erroneous determina-
tion that he was not head of a family, and he never suggested
to the district court that the garnishment should be calculated
differently for any reason other than the fact that he was head
of a family.
[10-12] A pro se litigant will receive the same consideration
as if he or she had been represented by an attorney,20 and, con-
currently, that litigant is held to the same standards as one who
is represented by counsel.21 Pro se litigants, like any other, may
not present issues, arguments, and theories for the first time
on appeal.22 A lower court cannot commit error in resolving an
issue never presented and submitted to it for disposition.23
We reject Friedman’s claim that he failed to present these
issues because the district court did not allow him to. Besides
having the freedom to amend his motion, at one point at the
hearing when Friedman asked the court if he could “add a
couple of other things,” the court responded, “Go ahead” and
20
Mart. v. Martin, 188 Neb. 393, 197 N.W.2d 388 (1972).
21
See Pope-Gonzalez v. Husker Concrete, 21 Neb. Ct. App. 575, 842 N.W.2d
135 (2013).
22
See, Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (2014);
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). See,
also, Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th
Cir. 2004); Stone v. Harry, 364 F.3d 912 (8th Cir. 2004); Wolfe Elec., Inc.
v. Duckworth, 293 Kan. 375, 266 P.3d 516 (2011); State v. McCall, 754
N.W.2d 868 (Iowa App. 2008).
23
See Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).
Nebraska Advance Sheets
984 290 NEBRASKA REPORTS
“say whatever you want.” While Friedman may have felt dis-
couraged by the court’s attitude toward his arguments, there is
no evidence in the record that he was precluded from present-
ing to the court any theory or evidence he wished to present.
The district court did not err in failing to award the
alleged improperly calculated garnishment or in failing to
consider factors other than Friedman’s head-of-household sta-
tus, because Friedman did not present those issues to the dis-
trict court.
Cross-Appeal
Roggentine sets forth in her brief a “Cross Assignment of
Error,” asking that we correct the lower court’s order to reflect
the correct amount of the Colorado judgment, $195,707.49.
Roggentine concedes that neither Roggentine’s affidavit for
registration of foreign judgment nor her affidavit and praecipe
for summons in garnishment sets forth the correct amount of
the Colorado judgment and that she did not raise this issue in
the hearing below.
[13] Under Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014), a
party filing a cross-appeal must set forth a separate division of
the brief prepared in the same manner and under the same rules
as the brief of appellant.24 Thus, the cross-appeal section must
set forth a separate title page, a table of contents, a statement of
the case, assigned errors, propositions of law, and a statement
of facts.25
There is no designation of a cross-appeal on the cover
of Roggentine’s brief, nor is a cross-appeal set forth in a
separate division of the brief as required by our court rules.
Therefore, we do not consider the merits of Roggentine’s pur-
ported cross-appeal.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
24
See Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759
N.W.2d 75 (2009).
25
Id.