Vlach v. Vlach , 286 Neb. 141 ( 2013 )

Nebraska Advance Sheets
VLACH v. VLACH 141
Cite as 286 Neb. 141Ronald G. Vlach, appellant, v.
Rhonda K. Vlach, appellee.
___ N.W.2d ___
Filed June 21, 2013. No. S-12-866.
1. Declaratory Judgments: Appeal and Error. When a declaratory judgment
action presents a question of law, an appellate court decides the question indepen-
dently of the conclusion reached by the trial court.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
3. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding
or denying attorney fees will be upheld absent an abuse of discretion.
4. Statutes: Appeal and Error. In the absence of a statutory indication to the con-
trary, an appellate court gives words in a statute their ordinary meaning.
5. Attorney Fees: Appeal and Error. A party may recover attorney fees and
expenses in a civil action only when a statute permits recovery or when the
Nebraska Supreme Court has recognized and accepted a uniform course of proce-
dure for allowing attorney fees.
6. Declaratory Judgments: Parties. A declaratory judgment action is to declare the
rights, status, or other legal relations between the parties.
7. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
8. Divorce: Attorney Fees: Appeal and Error. In an action for the dissolution
of marriage, the award of attorney fees is discretionary with the trial court, is
reviewed de novo on the record, and will be affirmed in the absence of an abuse
of discretion.
9. Attorney Fees. An award of attorney fees involves consideration of such factors
as the nature of the case, the services performed and results obtained, the length
of time required for preparation and presentation of the case, the customary
charges of the bar, and general equities of the case.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed.
Donald D. Schneider for appellant.
Susan A. Anderson, of Anderson & Bressman Law Firm,
P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Stephan, and Cassel, JJ.
Stephan, J.
Ronald G. Vlach brought this declaratory judgment action
in 2012. He alleged his 1985 marriage to Rhonda K. Vlach
Nebraska Advance Sheets
142 286 NEBRASKA REPORTS
was invalid because no certificate of marriage was filed with
the county clerk. The district court for Dodge County found
the marriage was valid and awarded attorney fees to Rhonda.
Ronald filed this timely appeal. We affirm the judgment of the
district court.
BACKGROUND
The underlying facts in this case are largely undisputed.
Ronald and Rhonda obtained a “License and Certificate of
Marriage” form bearing the identifying number “48 - 475”
from the Dodge County Court on October 3, 1985. They then
participated in a wedding ceremony officiated by a county
judge on October 4.
The form referred to above has three sections. The first sec-
tion is untitled and asks for identifying information about the
parties and the officiant. This section of the form before us is
mostly completed; only the name of the person performing the
ceremony and the names of the witnesses to the ceremony are
missing. The second section is entitled “Marriage License.”
It states, “LICENSE IS HEREBY GRANTED to any person
authorized to solemnize marriages according to the laws of said
State, to join [the parties] in marriage within Dodge County,
Nebraska.” The marriage license section of the form requests
the names, residences, and dates and places of birth of the
parties. It then states, “And the person joining them in mar-
riage is required to make due return of his proceedings to the
County Judge of Dodge County within fifteen days.” On the
form before us, all of the parties’ information is included in the
marriage license section. In addition, the county judge’s name
is typed in and the license section of the form is signed by the
clerk of the county court.
The third section of the form is entitled “Return of Marriage
Ceremony Certificate On License No. 48 - 475” (return). This
portion is intended to be completed by the marriage officiant
who certifies that he or she joined the parties in marriage in
the presence of two witnesses. The return is then to be pre-
sented to a county judge and the clerk of the county court for
signatures and filing. On the form before us, the return sec-
tion contains only the name of the county and the marriage
Nebraska Advance Sheets
VLACH v. VLACH 143
Cite as 286 Neb. 141license number. The remainder of the section is blank. It is
undisputed that the return was never filed with the State of
Nebraska’s Department of Health and Human Services, health
records management section, previously known as the Bureau
of Vital Statistics.
Ronald asked the district court to declare that “no marriage
ever existed” because the return was not completed and filed.
He asserts that he and Rhonda are not and never have been
husband and wife.
In her answer, Rhonda admitted that the parties obtained the
marriage license form and that a marriage ceremony occurred.
She alleged that the filing of the return is an administrative
action and that the failure to do so does not affect the validity
of the marriage. She requested that the action be dismissed and
that she be awarded attorney fees both pursuant to Neb. Rev.
Stat. § 25-824 (Reissue 2008) and “in equity.”
Ronald filed a motion for summary judgment. In support
of his motion, he offered and the court received (1) a certi-
fied copy of the marriage form bearing the completed license
but uncompleted return section; (2) a document stating that
the State of Nebraska health records management section
had no record of the marriage; and (3) Ronald’s affidavit,
in which he stated that he and Rhonda “held each other out
as husband and wife” after the marriage ceremony until his
attorney discovered on March 15, 2012, that the return had not
been completed.
The court also received several affidavits offered by Rhonda.
In one, a former county judge averred that he performed the
ceremony and solemnized the marriage of Ronald and Rhonda
on October 4, 1985. The judge averred that after the ceremony,
he prepared a marriage certificate. The certificate noted the
names and addresses of the two witnesses to the marriage
and the names, dates of birth, and residences of Ronald and
Rhonda. The judge averred that he signed the certificate him-
self and handed it to Ronald.
In another affidavit, Rhonda averred that she and Ronald
were married by the county judge in Fremont, Nebraska, at
a ceremony attended by approximately 250 people. At the
conclusion of the ceremony, the judge asked the witnesses to
Nebraska Advance Sheets
144 286 NEBRASKA REPORTS
accompany him to a small table at the front of the room, where
he asked the witnesses to sign the original marriage certificate.
Rhonda’s maid of honor confirmed the signing of the cer-
tificate at the table. Rhonda averred that when she and Ronald
returned from their honeymoon, she asked Ronald what he had
done with the original marriage certificate, and he replied that
he had placed it in a safe in his office. Rhonda averred that
early in the marriage, Ronald retrieved the marriage certificate
from the safe to enable Rhonda to travel because she did not
have a passport, and that he later insisted that Rhonda return
the certificate to him, “claiming that his safe was the most
secure location.”
In a deposition, Ronald denied that he had the original or
a copy of the marriage certificate. Ronald said he had no idea
what happened to the marriage license after it was issued.
He did not recall whether a marriage certificate was ever
signed, and he did not recall ever seeing an original marriage
certificate. The court also received the affidavit of Ronald’s
best man at the wedding, who stated that he did not observe
the judge give the certificate to Ronald or Rhonda after the
ceremony. The parties stipulated that the entire case could
be submitted to the court on the record made at the summary
judgment hearing.
The district court entered an order denying Ronald’s motion
for summary judgment and resolving the merits of the case,
which turns on an issue of law: whether a fully executed and
duly filed return of a marriage license is a legal requirement
for a valid marriage in Nebraska. The court concluded that
the requirements for a valid legal marriage, as provided by
Neb. Rev. Stat. § 42-104 (Reissue 1984), had been met. The
court further determined that the statutes relating to a return
of a marriage certificate are “procedural” and “do not consti-
tute substantive requirements for a valid legal marriage under
Nebraska law.” Finally, the court determined that “the evidence
as presented is uncontroverted that the parties have held them-
selves out as husband and wife since the date of their marriage
on October 3, 1985[,] and have continued to do so for the past
26 years.” After another evidentiary hearing, the court entered
an order awarding Rhonda attorney fees of $7,500 and taxing
Nebraska Advance Sheets
VLACH v. VLACH 145
Cite as 286 Neb. 141costs to Ronald. Ronald appeals from both orders. We moved
the appeal to our docket on our own motion pursuant to our
statutory authority to regulate the caseloads of the appellate
courts of this state.1
ASSIGNMENTS OF ERROR
Ronald assigns, summarized and restated, that the district
court erred in (1) finding that a valid marriage existed, (2) find-
ing that a common-law marriage existed between Ronald and
Rhonda, and (3) awarding attorney fees to Rhonda.
STANDARD OF REVIEW
[1] When a declaratory judgment action presents a question
of law, an appellate court decides the question independently of
the conclusion reached by the trial court.2
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.3
[3] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion.4
ANALYSIS
Validity of Marriage
The Nebraska statutes governing the formation of a marriage
are codified at Neb. Rev. Stat. §§ 42-101 to 42-118 (Reissue
2008). Under the version of § 42-104 in effect in 1985, mar-
riage licenses were issued by county courts.5 The statute was
amended in 19866 to provide that marriage licenses be issued
by county clerks. The amendment also provided that “[a]ppli-
cations for a marriage license made with the county court
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011).
3
United States Cold Storage v. City of La Vista, 285 Neb. 579, ___ N.W.2d
___ (2013).
4
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
5
§ 42-104 (Reissue 1984).
6
1986 Neb. Laws, L.B. 525, § 4.
Nebraska Advance Sheets
146 286 NEBRASKA REPORTS
prior to the operative date of this act [January 1, 1987], shall
be processed and licenses shall be issued by the county court
according to the law and procedures in effect on the date each
application was made.”7
Thus, we are governed by the law in effect in 1985. At that
time, § 42-104 provided that “no marriage hereafter contracted
shall be recognized as valid unless [a] license has been previ-
ously obtained, and unless such marriage is solemnized by a
person authorized by law to solemnize marriages.”8 The cur-
rent version of the statute is the same except for the additional
provision that the license must be “used within one year from
the date of issuance.”9
[4] In the absence of a statutory indication to the contrary,
this court gives words in a statute their ordinary meaning.10
The plain language of § 42-104, both at the time of the Vlachs’
application for a marriage license and today, includes only two
requirements for a marriage to be valid: the issuance of a mar-
riage license and the subsequent solemnization of the marriage
by a person authorized to do so.
And this is how we have construed the statute. In Collins
v. Hoag & Rollins,11 we reversed the Workers’ Compensation
Court’s holding that a common-law wife could receive work-
ers’ compensation benefits for her deceased common-law hus-
band. This court determined that the statutory language of
§ 42-104 was “clearly intended to prohibit and make invalid
any marriage in this state unless a license was first obtained
and the marriage solemnized by a person authorized to sol-
emnize marriages.”12 In a companion divorce case, Walden v.
7
Id.
8
§ 42-104 (Reissue 1984).
9
§ 42-104 (Reissue 2008).
10
Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829 N.W.2d 676(2013); Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526,
828 N.W.2d 147 (2013).
11
Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932).
12
Id. at 808, 241 N.W. at 768.
Nebraska Advance Sheets
VLACH v. VLACH 147
Cite as 286 Neb. 141Walden,13 we affirmed a trial court’s determination that there
was no valid marriage because there had been no solemniza-
tion ceremony as required by § 42-104, even though the parties
had cohabited and held themselves out as husband and wife for
a considerable period.
It is undisputed that the two requirements for a valid mar-
riage were met in this case. A marriage license was issued, and
on the following day, the marriage was solemnized by a county
judge authorized to perform marriages. But Ronald contends
that a third requirement was not met: the execution and filing
of the license and return. His argument is based on the follow-
ing statutes as they existed in 1985. Section 42-108 provided
that persons performing a marriage ceremony
shall make a return of his or her proceedings in the
premises, showing the names and residences of at least
two witnesses who were present at such marriage, which
return shall be made to the county judge who issued the
license within fifteen days after such marriage has been
performed, which return the county judge shall record or
cause to be recorded in the same book where the marriage
license is recorded.
Section 42-106 required county judges to maintain records of
marriages licenses issued, and § 42-112 provided that county
judges “shall record all such returns of such marriages in a
book to be kept for that purpose within one month after receiv-
ing the same.” Section 42-115 required religious societies join-
ing their members in marriage to complete and file a certificate
of the marriage in a similar fashion.
Ronald argues that because these statutes use the word
“shall” in referring to the obligation of the officiant to com-
plete and file the return, the marriage is invalidated if the offi-
ciant does not comply. We disagree. If the Legislature intended
such an outcome, it could have included the completion and
filing of the return as a third requirement in § 42-104. We find
no indication in the statutes that the Legislature intended to
penalize the parties to a duly licensed and solemnized marriage
13
Walden v. Walden, 122 Neb. 804, 241 N.W. 766 (1932).
Nebraska Advance Sheets
148 286 NEBRASKA REPORTS
for an officiant’s subsequent failure to complete and file the
return.14 The purpose of the return is to provide an official
record that the solemnization ceremony was performed. This
is evident based on § 42-116, which provides that the origi-
nal or a certified copy of the license “shall be received in all
courts and places as presumptive evidence of the fact of such
marriage.” In the absence of the certificate, parties would be
required to prove the existence of the marriage by some other
means, as they did in this case.
We agree with the district court that all statutory require-
ments were met and that the marriage of Ronald and Rhonda
was valid. For completeness, we address Ronald’s argument
that the district court erred in determining that the parties had
entered into a common-law marriage. We agree that common-
law marriages are not recognized in Nebraska.15 But we do not
read the district court’s order as recognizing a common-law
marriage. Rather, it was simply stating that the parties had held
themselves out as husband and wife. The court specifically
determined that the legal requirements for a valid marriage as
set forth in § 42-104 were met. As noted above, we agree.
Attorney Fees
[5] Having determined that the district court correctly
decided the merits of the case in Rhonda’s favor, we turn to
Ronald’s argument that it abused its discretion in awarding her
attorney fees in the amount of $7,500. A party may recover
attorney fees and expenses in a civil action only when a statute
permits recovery or when the Nebraska Supreme Court has
recognized and accepted a uniform course of procedure for
allowing attorney fees.16 Rhonda sought an award of attorney
fees both pursuant to § 25-824, which allows attorney fees
in frivolous actions, and in equity. The district court did not
specify the legal basis for its award of attorney fees.
14
See § 42-113 (Reissue 1984).
15
See, Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984); Ropken v.
Ropken, 169 Neb. 352, 99 N.W.2d 480 (1959).
16
Eikmeier v. City of Omaha, 280 Neb. 173, 783 N.W.2d 795 (2010);
Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
Nebraska Advance Sheets
VLACH v. VLACH 149
Cite as 286 Neb. 141[6,7] A declaratory judgment action is to declare the rights,
status, or other legal relations between the parties.17 An action
for declaratory judgment is sui generis; whether such action is
to be treated as one at law or one in equity is to be determined
by the nature of the dispute.18 Here, the nature of the declara-
tory judgment action is the determination of the marital status
of the parties. Accordingly, we conclude that entitlement to
attorney fees should be governed by the law applicable to the
dissolution of marriage.
[8,9] In an action for the dissolution of marriage, the
award of attorney fees is discretionary with the trial court, is
reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion.19 Such an award of attor-
ney fees involves consideration of such factors as the nature
of the case, the services performed and results obtained, the
length of time required for preparation and presentation of the
case, the customary charges of the bar, and general equities of
the case.20
Based on our review of the record, we find no abuse of dis-
cretion in the award of attorney fees under the district court’s
equity jurisdiction in domestic relations matters. Accordingly,
we need not determine whether Ronald’s action was “frivo-
lous” within the meaning of § 25-824.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
Affirmed.
Connolly and Miller-Lerman, JJ., participating on briefs.
McCormack, J., not participating.
17
Neb. Rev. Stat. § 25-21,149 (Reissue 2008); Bentley v. School Dist. No.
025, 255 Neb. 404, 586 N.W.2d 306 (1998).
18
American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807
N.W.2d 492 (2011); Wetovick v. County of Nance, supra note 16.
19
Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008); Gress v. Gress, 271
Neb. 122, 710 N.W.2d 318 (2006).
20
See id.