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State v. McColery

Supreme Court of Nebraska

November 9, 2018

State of Nebraska, appellee,
Scott McColery, APPELLEE, AND BRETT McArTHUR, Intervenor-appellant.

         1. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.

         2. Statutes: Legislature: Intent. The fundamental objective of statutory interpretation is to ascertain and carry out the Legislature's intent.

         3. 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 words which are plain, direct, and unambiguous.

         4. Statutes. A statute is ambiguous if it is susceptible of more than one reasonable interpretation, meaning that a court could reasonably interpret the statute either way.

         5. ___. It is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects a statute's purpose.

         6. ___. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

         7. Divorce: Alimony: Child Support: Liens: Property: Legislature. The Legislature did not provide through Neb. Rev. Stat. § 42-371 (Reissue 2016) for a lien on all personal property, tangible and intangible; instead, it expressly limited the lien to "registered personal property."

         8. Judgments: Liens: Statutes. Judgment liens are creatures of statute.

         9. Liens: Statutes. When a lien comes into existence by force of a statute, it must be measured by the statute, and can have no greater force than the statute gives it.

         [301 Neb. 517] 10. Statutes. Statutes in derogation of common law are to be strictly construed.

         11. Property. Money is intangible property; it is not tied up in a fixed state.

         12. Bailment: Divorce: Alimony: Child Support: Property. Under the current statutory scheme for bail, Neb. Rev. Stat. §§ 29-901 through 29-910 (Reissue 2016), money deposited as recognizance with the clerk of the court is not personal property registered with a county office under Neb. Rev. Stat. § 42-371 (Reissue 2016).

         13. Statutes. With respect to questions about a statute, a court's role is limited to interpretation and application of statutes, irrespective of the court's personal agreement or disagreement with a particular legislative enactment, so long as a questioned statute does not violate a constitutional requirement.

         14. ___. Whether a court considers particular legislation as wise or unwise is irrelevant to the judicial task of construing or applying a statute.

          Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge.

          Brett McArthur, pro se.

          Joe Kelly, Lancaster County Attorney, and Braden W. Storer for appellee State of Nebraska.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Freudenberg, J.


         This is an appeal by the debtor's former attorney from an order in garnishment enforcing a statutory lien by the State for past-due child support, against an appearance bond deposit held by the clerk of the court in a criminal case unrelated to the child support order. During the pendency of the criminal matter, the debtor had assigned to his attorney his contingent right to a return of the bond deposit, as part of the debtor's payment for the attorney's services. During the garnishment proceedings, the attorney asserted that appearance bond funds are not personal property "registered" with a "county [301 Neb. 518] office," as required for a lien under Neb. Rev. Stat. § 42-371 (Reissue 2016). The district court disagreed and found that the State had a lien under § 42-371. We reverse, and remand with directions.


         In 1994, the State obtained a judgment against Scott McColery for child support. By 2000, McColery was approximately $12, 000 in arrears on his child support payments. In September 2015, McColery was charged in the county court for Lancaster County with strangulation. By that time, McColery was approximately $18, 000 in arrears in his child support payments.

         On October 5, 2015, pending trial, McColery deposited with the county court $5, 000 in relation to a $50, 000 appearance bond. The bond was to remain in force until the final judgment. Ninety percent of the bond deposit was to be returned to McColery upon appearance, and 10 percent would be retained by the county court clerk for bond costs.

         Although McColery was originally represented by a public defender, he later obtained Brett McArthur to represent him. As part of McArthur's compensation, McColery assigned the bond funds to McArthur. The assignment was made on October 29, 2015, and was filed with the county court the next day.

         Following McColery's conviction, on November 18, 2015, the State filed in the county court an affidavit of lien for child support. The State averred that McColery owed more than $18, 000 in past-due child support. The State explained in its affidavit that it had reason to believe that the county court had McColery's property in its possession, in the form of a bond. The parties do not dispute that McColery appeared in court as ordered, and his bond was not forfeited.

         Release of Funds Motion

         On June 30, 2016, McArthur filed a motion with the district court for Lancaster County to issue an order releasing the bond funds to him. The district court overruled the [301 Neb. 519] motion without making specific findings of fact. McArthur appealed.

         In State v. McColery, [1] we held that we lacked jurisdiction over the appeal, because the court's order overruling the motion to release the bond funds was not final.[2] We explained that the order was not a final determination of the rights of the parties, because it did not indicate that McArthur was not entitled to the funds or that the State was entitled to the funds. We noted that the State had not yet initiated garnishment proceedings. We explained further that if it did so, McArthur would be able to intervene pursuant to Neb. Rev. Stat. § 25-1030.03 (Reissue 2016).

         Garnishment Proceedings

         On July 10, 2017, the State filed with the district court an affidavit for garnishee summons after judgment. The State set forth in the affidavit that the district court had McColery's property, which the State sought to garnish to partially satisfy past-due child support in the amount of $17, 923.46. The summons and order of garnishment in aid of execution was issued the following day.

         The clerk of the district court did not object and responded to the attached interrogatories, stating that it had property belonging to McColery. Specifically, the clerk of the district court described the property as "Bond Money at CR-15-1358," in the amount of $4, 500. But, under "[d]ate the money or credits were due, or will be due," the clerk explained "Upon Order - Bond Assigned to Attorney 10-30-15."

         McColery requested a hearing and alleged that the funds asked for were exempt from garnishment. McArthur intervened and filed a motion to quash garnishment on the ground that the $4, 500 in the district court's possession had been assigned to McArthur before the garnishment action.

         [301 Neb. 520] The court held a hearing on the motion to quash. The State argued that the child support judgment against McColery operated as an automatic lien against the funds from the moment they were deposited into the county court, because they constituted "personal property registered with [a] county office."[3]McArthur argued that depositing a bond is not "registering" it and, further, that the county court is not a "county office."

         The court overruled McArthur's motion to quash and ordered that the bond funds being held by the court be remitted to the Nebraska Child Support Payment Center and credited against McColery's child support arrears. McArthur appeals.


         McArthur assigns that the district court erred in overruling his motion to quash garnishment and in ordering the payment of funds held by the court toward McColery's child support payments.


         Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion ...

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