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Harring v. Gress

Supreme Court of Nebraska

February 17, 2017

Marcia M. Harring, appellant,
v.
Janis J. Gress and Fredrick Gress, Copersonal Representatives of the Estate of Darin J. Gress, deceased, appellees.

         1. Motions to Dismiss: Appeal and Error. A district court's grant of a motion to dismiss is reviewed de novo.

         2. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy.

         3. Courts. The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreement based on contingent future events that may not occur at all or may not occur as anticipated.

         Appeal from the District Court for Thayer County: Vicky L. Johnson, Judge. Reversed and remanded for further proceedings.

          Daniel L. Werner, PC, L.L.O., for appellant.

          Sheri Burkholder, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., for appellees.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, and Stacy, JJ.

          HEAVICAN, C.J.

         INTRODUCTION

         Marcia M. Harring filed suit in the district court seeking the allowance of an unliquidated claim against the decedent's [295 Neb. 853] estate and the imposition of a lien against real property owned by the estate or, in the alternative, a trust, constructive or otherwise, to secure payment of that claim, as well as judgment for attorney fees and costs. The estate's motion to dismiss was granted, and Marcia appeals. We reverse, and remand for further proceedings.

         BACKGROUND

         Marcia was previously married to the decedent, Darin J. Gress. Justin Gress, son of Marcia and Darin, was born in 2000.

         Marcia and Darin were divorced in 2009. That decree provided in part:

"12. Pursuant to the stipulation of the parties in regard to Justin's funds, the Court approves creation of a joint account requiring the signatures of both parties for disbursement for college expenses. Any savings held in the name of Justin and not used for his education shall be transferred to him when he reaches his age of majority or becomes otherwise emancipated.
"13. Pursuant to the stipulation of the parties, Darin and Marcia are ordered to equally pay for Justin's reasonable secondary educational expenses not otherwise covered by his savings accounts. Such expenses include tuition, books, and housing."

         Darin died on May 15, 2015, and his estate is being probated in the Thayer County Court. Janis J. Gress and Fredrick Gress are the copersonal representatives of the estate; Justin is an heir at law.

         On August 4, 2015, Marcia filed a claim with Darin's estate on Justin's behalf. The claim sought one-half of Justin's reasonable secondary educational expenses not otherwise covered by his savings accounts, due upon incurring such expenses. The claim indicated that it was contingent and unliquidated. This claim was disallowed by the estate.

         Marcia filed suit in the district court against the estate, seeking that the court order the claim filed on August 4, 2015, be [295 Neb. 854] "allowed, " and further that the court confirm the lien of the court's judgement against real property owned by the estate. Marcia also filed a second cause of action against Janis and Fredrick, arguing that they owed a fiduciary duty to the estate to pay all lawful claims and that this duty was ...


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