Articles Posted in Family Law

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Accrued investment earnings or appreciation of nonmarital assets during the marriage are presumed marital unless the party seeking the classification of the growth as nonmarital proves that the growth is readily identifiable and traceable to the nonmarital portion of the account and the growth is not due to the active efforts of either spouse. In this dissolution action, Husband, the cofounder and president of a C corporation who owned thirty-four percent of its stock, argued that none the nearly $5 million in appreciation of his stock interest during the parties’ twenty-five-year marriage was subject to equitable division. The trial court found that Husband’s thirty-four percent ownership interest in the corporation was, in its entirety, nonmarital. The Supreme Court reversed the division of the C corporation property, holding that, based on the active appreciation rule, the court should not have excluded the corporation of the marital estate. View "Stephens v. Stephens" on Justia Law

Posted in: Family Law

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Charissa was pregnant when she married Erin. Several months later, Charissa gave birth to a daughter. Charissa listed Erin as the child’s father on her birth certificate. The parties later separated. One year later, Charissa filed a motion for genetic testing to determine the paternity of the child, which she requested in an effort to rebut the presumption of legitimacy concerning a child born during the marriage. Erin subsequently filed a complaint for dissolution of marriage. The court overruled Charissa’s motion for genetic testing. After a trial, the court entered a decree finding that Charissa had not rebutted the statutory presumption of legitimacy. The court further made an express finding that Erin was the child’s father. The court awarded the parties joint legal and physical custody of the child. The Supreme Court affirmed, holding (1) the court’s denial of genetic testing was not an abuse of discretion; (2) Charissa failed to rebut at trial the presumption of legitimacy; and (3) the court did not abuse its discretion in awarding joint custody. View "Erin W. v. Charissa W." on Justia Law

Posted in: Family Law

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The State filed a petition against Mother and Father alleging that Child lacked prenatal care due to the fault or habits of Mother and Father. The juvenile court filed an ex parte order granting the State’s motion for temporary custody of Child with the Department of Health and Human Services (DHHS). More than eight months later, the juvenile court entered an order ordering that Child remain in the temporary custody of DHHS until further order of the court. The Supreme Court vacated the juvenile court’s order, holding that Mother’s procedural due process were violated by the unreasonable delay of more than eight months between the filing of the ex parte order for immediate temporary custody and the filing of the protective custody order. View "In re Interest of Carmelo G." on Justia Law

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Douglas County challenged a district court order that required the County to pay an appointed attorney’s costs in the underlying divorce pursuant to Neb. Rev. Stat. 42-358 because the spouse who was responsible for the payment of the appointed attorney’s fees was not indigent. The Supreme Court reversed the order of the district court and remanded with directions to vacate its order granting attorney fees and costs, holding that the district court lacked the statutory authority to order the County to pay fees in a dissolution action where neither party was indigent. Therefore, the district court erred in ordering the County to pay the appointed attorney for his appellate work in the underlying divorce case. View "White v. White" on Justia Law

Posted in: Family Law

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Plaintiff filed a complaint against Defendant seeking to establish paternity, custody, and support of the parties’ minor child. Thereafter, Plaintiff moved to disqualify Defendant’s privately retained legal counsel. The district court granted the motion. Defendant filed a motion to reconsider, which the district court denied. Defendant then filed a purported appeal from the court’s order, assigning seven errors relating to the district court’s disqualification of her attorney. The Supreme Court dismissed the appeal, holding (1) this Court improperly exceeded its statutory and constitutional authority twenty years ago when it adopted the so-called Richardson exception to the final order requirement, and therefore, the Court’s line of decisions purporting to authorize an interlocutory appeal are hereby overruled; and (2) because the appeal from the order at issue in this case is not statutorily authorized, the appeal is dismissed. View "Heckman v. Marchio" on Justia Law

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Jay Bergmeier filed a complaint for dissolution of marriage. Nanci Bergmeier filed a counter-complaint. The district court filed a decree of dissolution of marriage that (1) determined Jay’s future termination payments and extended termination payments that he was expected to receive after the dissolution as a “captive agent” of State Farm Insurance Company were marital property and awarded Nanci a portion thereof, (2) divided the parties’ liabilities and other assets, and (3) awarded Nanci alimony and attorney fees. The Supreme Court affirmed in part as modified and in part reversed, holding that the district court (1) did not err in determining that Jay’s termination payments and extended termination payments under his contract with State Farm were marital property; (2) erred in assigning a specific value to the termination payments and in awarding Nanci fifty percent of the termination payments and extended termination payments; and (3) did not abuse its discretion in its award of alimony. Remanded. View "Bergmeier v. Bergmeier" on Justia Law

Posted in: Family Law

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The State filed juvenile petitions alleging that the three children of Mother and Father came within the meaning of Neb. Rev. Stat. 43-247(3)(a) due to the faults and habits of their parents. The juvenile court found the allegations of the petitions were true as to every child. The orders of adjudication placed custody of the children with the Nebraska Department of Health and Human Services (DHHS) and ordered speech and language and early childhood development assessments for two of the children. Mother and Father, however, refused to complete consent forms necessary to authorize the assessments ordered by the court. Consequently, the court appointed an “educational surrogate” for both children. The Supreme Court affirmed, holding (1) the juvenile court did not err in ordering Mother and Father to show cause why they should not be held in contempt and subsequently appointing an education surrogate while the adjudications were pending in the Court of Appeals; and (2) the orders appointing an educational surrogate were not imposed as a sanction for civil contempt. View "In re Interest of Becka P." on Justia Law

Posted in: Family Law

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Plaintiffs were three same-sex couples who sought to enjoin Defendants from enforcing a 1995 administrative memorandum and from restricting gay and lesbian individuals and couples from being considered or selected as foster or adoptive parents. Plaintiffs generally alleged that the policy violated equal protection and due process and violated 42 U.S.C. 1983. The court ordered the memorandum rescinded and stricken and enjoined Defendants and those acting in concert with them from enforcing the memorandum and/or applying a categorical ban such as the one at issue in this case. Defendants appealed, arguing that Plaintiffs lacked standing to bring this case, that there was no case or controversy, and that the lawsuit became moot when the policy memorandum was removed from the Department of Health and Human Services (DHHS) website after Plaintiffs’ motion for summary judgment was filed. The Supreme Court affirmed, holding (1) the underlying action was justiciable; and (2) the district court did not abuse its discretion in awarding costs and attorney fees. View "Stewart v. Heineman" on Justia Law

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In 2004, Michael Burns and Kerry Burns divorced. This appeal involved a contempt proceeding between the parties that was pending before the district court for Adams County. Judge James Doyle, acting as the district judge for Adams County, issued an order requiring Kerry to appear in the Dawson County District Court and show cause why she should not be held in contempt for refusing to comply with prior orders. When Kerry did not appear for the show cause hearing the district court entered an order finding Kerry in contempt and sanctioning her to ten days in jail. Thereafter, Kerry moved the district court to vacate its order on the basis that the court did not have authority to hold an evidentiary hearing outside of the county in which it was sitting. The district court overruled Kerry’s motion to vacate. The Supreme Court reversed, holding that the district court did not act in conformity with the law when it ordered Kerry to appear in Dawson County and when it held the contempt hearing there because Dawson County was outside the pending county of Adams County. Remanded. View "Burns v. Burns" on Justia Law

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Father appealed from a decree dissolving his marriage to Mother, contesting the award of custody of the parties’ two children to Mother, the order that Father pay child support, and the classification of lump-sum disability benefit payment from the Department of Veterans Affairs (VA) as marital property. The Supreme Court modified the decree to exclude the payment’s proceeds, holding (1) federal law prevents a state court from exercising subject matter jurisdiction over VA disability benefits, and therefore a state court cannot include the amount of military retirement pay that a veteran waives in order to receive such benefits as divisible marital property; and (2) the remainder of the district court’s rulings were not in error. View "Donald v. Donald" on Justia Law

Posted in: Family Law