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Becher v. Becher

Supreme Court of Nebraska

March 9, 2018

SONIA BECHER, APPELLEE AND CROSS-APPELLANT.
v.
MARK A. BECHER, APPELLANT AND CROSS-APPELLEE.

         1. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         2. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.

         3. Appeal and Error. Generally, a party cannot complain of error which the party has invited the court to commit.

         4. Verdicts: Evidence: Appeal and Error. The recommended factual findings of a special master have the effect of a special verdict, and the report upon questions of fact, like the verdict of a jury, will not be set aside unless clearly against the weight of the evidence.

         5. Trial: Judgments. Neb. Rev. Stat. § 25-1131 (Reissue 2016) does not require a district court reviewing a referee's decision to make specific findings.

         6. Statutes. To the extent there is a conflict between two statutes on the same subject, the specific statute controls over the general.

         7. Child Custody: Visitation: Courts. A trial court has an independent responsibility to determine questions of custody and visitation of minor children according to their best interests, which responsibility cannot be controlled by an agreement or stipulation of the parties.

         8. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations [299 Neb. 207] regarding custody, child support, division of property, alimony, and attorney fees.

         9. Evidence: Appeal and Error. In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

         10. Property Division. With some exceptions, the marital estate does not include property acquired by one of the parties through gift or inheritance.

         11. Modification of Decree: Divorce: Child Custody. If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.

         12. Waiver: Appeal and Error. Whether a party waived his or her right to appellate review is a question of law.

         13. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.

         14. Estoppel. The doctrine of equitable estoppel is applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he or she has acquiesced or of which he or she has accepted any benefit.

         15. Divorce: Judgments: Waiver: Appeal and Error. A spouse who accepts the benefits of a divorce judgment does not waive the right to appellate review under circumstances where the spouse's right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter of right to the benefits accepted such that the outcome of the appeal could have no effect on the right to those benefits, or the benefits accepted are pursuant to a severable award which will not be subject to appellate review.

         16. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed is reviewed for abuse of discretion.

         17. Courts: Restitution: Contempt. Through its inherent powers of contempt, a court may order restitution for damages incurred as a result of failure to comply with a past order.

          [299 Neb. 208] 18. Contempt. Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party.

         Petition for further review from the Court of Appeals. Moore, Chief Judge, and Riedmann and Bishop, Judges, on appeal thereto from the District Court for Lancaster County, Steven D. Burns, Judge. Judgment of Court of Appeals in No. S-16-054 affirmed in part, and in part reversed and remanded with directions.

         Appeal from the District Court for Lancaster County: Steven D. Burns, Judge, and Karen Flowers, Judge, Retired. Judgment in No. S-16-793 affirmed.

          David P. Kyker for appellant in Nos. S-16-054 and S-16-793.

          Brad Sipp for appellant in No. S-16-054.

          Sally A. Rasmussen, of Mattson Ricketts Law Firm, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Kelch, and FUNKE, JJ.

          Cassel, J.

         I. INTRODUCTION

         These two appeals, which have been consolidated in this court, stem from marital dissolution proceedings. One challenged the district court's decree, and is before us on further review of a Nebraska Court of Appeals' decision.[1] Primarily, we disagree with the Court of Appeals' determination that a district court must state specific findings in order to set aside or modify a referee's report authorized by chapter 25 of the Nebraska Revised Statutes (Chapter 25)[2] as clearly against the weight of the evidence. In this appeal, we affirm in part, [299 Neb. 209] and in part reverse and remand with directions. The assigned errors in the second appeal, flowing from contempt proceedings, lack merit. In that appeal, we affirm.

         II. BACKGROUND

         1. Appeal No. S-16-054

         Mark A. Becher and Sonia Becher were married for 21 years before Sonia filed a complaint for dissolution of marriage in 2013. Because they could not agree to the valuation and division of their vast marital estate or to the award of child custody, child support, alimony, and attorney fees and costs, they agreed to have these issues tried before a court-appointed referee. The consent cited § 25-1129 et seq.

         (a) District Court Proceedings

         After a 14-day trial, the referee submitted a report describing its findings of fact on uncontested issues and its "analysis and recommendations" which are set forth in more detail below. Both parties initially filed exceptions to the report, but Mark later withdrew his. Therefore, only Soma's exceptions and the voluminous record produced at trial were submitted to the district court on review of the referee's report.

         The district court entered a final decree in December 2015 in which it adopted some of the referee's factual findings and recommendations and set forth its own findings and conclusions on other issues. Specific findings and conclusions are discussed in our analysis.

         (b) Appeal to Court of Appeals

         Mark timely appealed and challenged the district court's review and consideration of the referee's report. He assigned error to certain findings of the court regarding the classification, valuation, and division of the parties' assets and debts; custody and parenting time; child support; alimony; and attorney fees. Sonia cross-appealed and assigned error to the court's allocation of holiday parenting time and its failure to classify certain property as nonmarital.

          [299 Neb. 210] The Court of Appeals found several of Mark's assigned errors had been waived pursuant to the acceptance of benefits doctrine and for failure to take exception to the referee's report. After concluding that the majority of the issues were preserved for appeal, it addressed the remaining assigned errors concerning the district court's revisions of the referee's report.

         The Court of Appeals reviewed Nebraska precedents which generally provided that a referee's findings are treated like a special verdict and can be set aside only where it is '"clearly against the weight of the evidence.'"[3] However, the court also relied on a case from the District Court of Appeal of Florida[4] to find that a trial court must explicitly determine that a referee's findings are clearly against the weight of the evidence before setting aside or modifying a referee's report. With this new standard, the Court of Appeals concluded that the district court failed to apply the correct standard of review. The Court of Appeals then vacated those portions of the decree where the district court made findings and conclusions that were inconsistent with the referee's report and modified it to incorporate the findings and conclusions of the referee.[5]

         We granted Mark's and Sonia's petitions for further review to address the correct standard of review owed to the findings and recommendations of court-appointed referees.

         2. Appeal No. S-16-793

          While the first appeal was pending before the Court of Appeals, Mark and Sonia each filed cross-motions for orders [299 Neb. 211] to show cause, alleging numerous violations of the district court's decree. Because the parties contest only a few of the findings of contempt, only those allegations and findings relevant to this appeal are set forth.

         Sonia alleged that Mark entered her residence uninvited, caused damage to the residence, and removed personal property that was not awarded to him under the decree. She further alleged that he repeatedly entered one of her commercial buildings without authorization, caused damage to the property, and removed property from the building that was not awarded to him under the decree.

         Mark alleged that Sonia failed to deliver certain personal property awarded to him under the decree. At the hearing, Sonia admitted to having sold certain items awarded to Mark, but maintained that several of the listed items were actually awarded to her. She alleged that she did not have any of the other items of property.

         The district court entered orders of contempt against both Mark and Sonia. The court did not make any findings as to whether Mark entered Sonia's home or commercial building unauthorized, caused damage to the properties, or otherwise removed property from those locations. Rather, it disposed of these allegations with a blanket denial of all other relief requested. In its order of contempt against Sonia, the court found that she willfully and contumaciously failed to comply with the decree requiring she turn over all the property listed. Instead of ordering that she turn over the property, the court entered a judgment against Sonia and required that she pay $2, 500 as "compensation for the property she did not turn over."

         Mark timely appealed, and Sonia cross-appealed. We moved the appeal to our docket[6] and consolidated the appeal with the appeal in case No. S-16-054 for oral argument and disposition.

         [299 Neb. 212] III. ASSIGNMENTS OF ERROR

         In appeal No. S-16-054, the dissolution proceeding, Mark assigns that the Court of Appeals erred in (1) finding that he waived his right to appeal the award of three commercial properties to Sonia, because he quitclaimed the deeds to Sonia in compliance with the district court's decree; (2) adopting the referee's determination of custody and parenting time instead of remanding the issues to consider new developments in the 18 months the appeal has been pending; and (3) not remanding for further hearing to conduct a complete accounting.

         Sonia assigns that the Court of Appeals erred in (1) applying its standard of review and (2) concluding that the acceptance of benefits doctrine did not bar Mark's appeal as it relates to the division of property.

         In appeal No. S-16-793, the civil contempt proceeding. Mark assigns that the district court (1) erred in modifying its decree of dissolution while the appeal of the decree was pending, (2) abused its discretion in ordering Sonia to pay restitution for selling or retaining personal property awarded to Mark in an amount less than the value of the property, and (3) abused its discretion and violated Mark's right to due process in refusing to permit Mark to offer evidence or otherwise rebut Sonia's evidence in support of her motion for contempt.

         Sonia cross-appeals and assigns that the district court erred in failing to find Mark in contempt for (1) his unauthorized entry into Sonia's home and the damage he caused while at the home and (2) his unauthorized entry into Sonia's commercial building and the removal of property not awarded to him in the decree.

         IV. ANALYSIS

         1. Standard of Review of Chapter 25 Referee's Report

         Sonia argues that the Court of Appeals incorrectly applied its standard of review, because it "took issue with the fact that the trial judge had not specifically stated the referee's report [299 Neb. 213] (in certain, limited respects) was 'against the weight of the evidence.'"[7] We agree. In addressing this assignment of error, it is first necessary to clarify the standard of review owed to a court-appointed referee's findings. Because the referee in this case additionally made findings and recommendations as to child custody, child support, and alimony, it is also necessary to discuss the effect of the child support referee statutes[8]and the Parenting Act.[9] This requires statutory interpretation. Therefore, we begin by recalling basic guiding principles of statutory interpretation.

         Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.[10] It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.[11]

         (a) District Court's Standard of Review

         (i) Chapter 25 Referee Statutes

         Our civil procedure statutes have provided for trial by referee since Nebraska became a state.[12] But we have been unable to find a reported decision where this procedure has been used in a divorce case since 1888.[13] Prior to the adoption of Nebraska's no-fault divorce statute in 1972, [14] our divorce statute stated that suits for divorce "shall be conducted in the same manner as other suits in courts of equity."[15] But our [299 Neb. 214] current divorce statutes contain no such language. It is an open question whether the Legislature intended the Chapter 25 referee provisions to apply to a dissolution action. But even if doing so was error, it was one invited by the parties. Generally, a party cannot complain of error which the party has invited the court to commit.[16] Thus, we assume that a Chapter 25 referee may be appointed in a dissolution action, and turn to the specific issue presented here.

         Section 25-1131 provides the relevant standard of review for a general court-appointed referee's findings:

The trial before referees is conducted in the same manner as a trial by the court. . . . They must state the facts found and the conclusions of law, separately, and their decision must be given, and may be excepted to and reviewed in like manner. . . . When the reference is to report the facts, the report has the effect of a special verdict.

(Emphasis supplied.) By its plain language, a Chapter 25 referee's factual findings are entitled to some deference. This is in line with our historical standard of review for the recommended findings of special masters appointed by this court pursuant to § 25-1129.[17] But without similar language limiting the district court's review of a referee's conclusions or recommendations, we decline to read such language into the statute. Therefore, we conclude that the district court owed no deference to the referee's conclusions or recommendations.

         Our case law establishes that the recommended factual findings of a special master have the effect of a special verdict, and the report upon questions of fact, like the verdict of a jury, will not be set aside unless clearly against the weight of the evidence.[18] The recommended factual findings of the referee were entitled to the same treatment.

          [299 Neb. 215] But the Court of Appeals went further. It reasoned that because the district court did not make an explicit determination on the record that the findings were against the clear weight of the evidence, it did not give deference to recommended factual findings.[19] However, § 25-1131 does not require a district court reviewing a referee's decision to make specific findings. Our divorce statutes do not require specific findings in the division of property, [20] except a finding whether a property settlement agreement is or is not unconscionable.[21]That is not to say that specific findings are not helpful. In some instances, we have stated that they would have been.[22]But even where our civil procedure code mandates specific findings, it does so only upon a party's request.[23] Our case law teaches that unless a statute requires specific findings or we mandated them as a matter of case ...


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