Everett Inbody

The case involves post-decree proceedings in the divorce of Susan Kaye Thompson and Gary Dean Thompson, specifically regarding the division of Susan's 401(k) account. After the Court of Appeals previously modified the trial court's equal division to 67 percent for Susan and 33 percent for Gary, the court considered a motion to vacate a QDRO that the trial court had entered during the appeal to implement the original decree. The court determined that the trial court retained jurisdiction to issue the QDRO because the divorce decree was not superseded by bond and no stay order had been entered under Neb. Rev. Stat. § 42-351(2). It concluded that the trial court must vacate the existing QDRO upon issuance of the mandate to enter a new one consistent with the appellate ruling on the account division.

family lawprocedure

This case involved a dispute among siblings over the administration of their parents' revocable living trust after both parents had passed away. Beneficiary Robert Socha petitioned the county court to remove his siblings, Larry Socha and Bonita Carraher, as successor cotrustees, alleging they had failed to provide requested information and accountings, delayed closing the trust and distributing assets, and expressed intent to keep the trust open indefinitely. Following an evidentiary hearing, the county court removed the cotrustees and appointed a replacement to wind up the trust. On appeal, the Nebraska Court of Appeals affirmed, finding competent evidence supported the lower court's conclusions that the cotrustees had not acted in the trust's best interests and had engaged in conduct warranting removal under the Nebraska Uniform Trust Code, regardless of whether the review standard was de novo or for errors on the record.

propertyfamily law

The case concerned whether the six-month speedy trial period under Neb.Rev.Stat. § 29-1207 had expired in a first-degree murder prosecution, specifically whether the district court properly excluded 195 days for competency-related activities when it denied the defendant's motion for discharge. The Nebraska Court of Appeals, on rehearing, reversed the district court's order, holding that the period from April 8 to October 20, 2008, could not be excluded as time attributable to a proceeding concerning the defendant's competency to stand trial. The court reasoned that the record did not establish a formal competency proceeding under § 29-1823 that tolled the clock for the entire interval, and therefore the speedy trial deadline had passed before the motion to discharge was filed.

criminal lawprocedure

This case is a marital dissolution action between Susan and Gary Thompson involving disputes over property division, retirement benefits, health insurance obligations, child support, alimony, attorney fees, and a parenting plan for their then-minor daughter. The Nebraska Court of Appeals affirmed most of the district court's decree but modified it to award Gary sole ownership of Icon Mountain, 33 percent of Susan's 401(k) as of the decree date plus gains or losses, and to vacate the order requiring Susan to pay for Gary's health insurance while directing reimbursement if she had already paid. The court reasoned that these changes were required for equitable division of marital assets and to correct the district court's errors on benefits and support, while finding no abuse of discretion in the award of attorney fees or other remaining provisions, and deeming parenting issues moot due to the child's age.

family lawpropertyprocedure

In Hall v. Hall, the case involved a former wife's attempt to enforce a 2005 divorce decree requiring both parties to prepare qualified domestic relations orders (QDROs) to divide their retirement accounts equally. The district court ordered the former husband to submit a proposed QDRO within 30 days, and he appealed. The Nebraska Court of Appeals dismissed the appeal, holding that it lacked jurisdiction because the order was not final. The court reasoned that the order did not affect a substantial right, as it merely required the submission of a proposed QDRO rather than actually dividing the pension funds, distinguishing it from the entry of a QDRO itself.

family lawprocedure

This case involved the State of Nebraska seeking to adjudicate 15-year-old Emma J. as a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) due to allegations of inappropriate physical discipline by her father, Geneo J., and related family issues, with the matter also implicating the Indian Child Welfare Act (ICWA) because Emma was an Indian child. The juvenile court adjudicated Emma and ordered her continued placement outside the home with foster care. On appeal, the Nebraska Court of Appeals affirmed the adjudication, holding that the State had proven the allegations by a preponderance of the evidence through testimony about the May 2009 incident and prior family history. However, the court reversed the out-of-home placement order, reasoning that the record contained no evidence of the active efforts to prevent family breakup or the expert testimony required under ICWA for such placements, and remanded for further proceedings compliant with ICWA.

family lawfederal powerprocedure

Brent Luff was convicted of attempted first degree sexual assault on a child after an incident involving a 15-year-old victim. His initial direct appeal was dismissed for failure to file a brief, but he obtained reinstatement of the appeal through postconviction relief based on ineffective assistance of appellate counsel. On appeal, Luff challenged the denial of his motion for new trial based on newly discovered impeachment evidence, the introduction of a photograph at trial, the lack of corroborating evidence, and the sufficiency of the evidence. The Nebraska Court of Appeals affirmed the conviction, holding that the victim's testimony was sufficient to support the verdict, that no corroboration was required for an attempt charge, that trial counsel's actions did not prejudice the outcome, and that the motion for new trial was properly denied as the evidence was merely impeaching.

criminal lawprocedure

The case concerned the juvenile court's adjudication of a one-year-old child under Neb.Rev.Stat. § 43-247(3)(a) based on allegations that the father lacked proper parental care due to his possession of 0.3 grams of crack cocaine. The juvenile court found jurisdiction, reasoning that the illegal possession subjected the father to potential arrest and inability to care for the child. The Nebraska Court of Appeals reversed, holding that the stipulated facts showed no evidence of actual harm or definite risk of future harm to the child from the isolated possession, distinguishing it from cases involving patterns of substance abuse or incarceration that directly affected the child.

family lawcriminal law

In Sherman v. Sherman, Susan Sherman sought a domestic abuse protection order against her ex-husband Scott based on repeated phone calls and text messages, but the trial court sua sponte converted it to a harassment protection order under Neb. Rev. Stat. § 28-311.09 after an ex parte hearing and a later contested hearing. Scott appealed, arguing lack of due process, improper advocacy by the court, and insufficient evidence. The Nebraska Court of Appeals reversed the protection order, holding that Susan's petition, affidavit, and supporting exhibits were never properly admitted into evidence and could not support the order, as courts cannot take judicial notice of disputed facts in such proceedings. The court remanded with directions to vacate the order but found the action was not frivolous so as to warrant attorney fees.

family lawprocedure

This case concerns the registration and enforcement in Nebraska of a California divorce decree ordering child and spousal support under the Uniform Interstate Family Support Act. The district court confirmed the support orders after a hearing and later accepted the parties' agreement setting consolidated arrearages at $211,444.62. On appeal, the Nebraska Court of Appeals affirmed, holding that the district court acquired personal jurisdiction over the appellant because he filed a request for hearing seeking affirmative relief before asserting a jurisdictional challenge. The court further held that the appellant was barred by Neb. Rev. Stat. § 42-743 from raising an equitable estoppel defense after confirmation, because that defense could have been asserted at the confirmation hearing.

family lawprocedure

The case concerned a traffic stop of a vehicle in which Luis Carlos Vasquez-Arenivar was a passenger, leading to a pat-down search, discovery of methamphetamine, and his convictions for possession of a controlled substance with intent to distribute and tampering with physical evidence. Vasquez-Arenivar appealed the denial of his motion to suppress, arguing the search violated his constitutional rights. The court held the pat-down was justified by officer safety concerns given the circumstances, including the vehicle's tint and a passenger's criminal history, and that Vasquez-Arenivar abandoned the drugs in plain view of officers, supporting the drug conviction. However, following precedent, the court found that merely dropping or abandoning evidence in the presence of law enforcement does not constitute tampering, as it neither conceals nor removes the evidence, and therefore vacated the tampering conviction and sentence.

criminal lawprocedure

This case involves the State of Nebraska petitioning to terminate Crystal W.'s parental rights to her two young children after they were removed from her care due to concerns over her mental health and incidents involving the children. The county court, sitting as a juvenile court, terminated the rights on statutory grounds including the mother's mental condition, noncompliance with rehabilitation plans, and the children's extended out-of-home placement, also finding termination in the children's best interests. On appeal, the Nebraska Court of Appeals reversed the orders and remanded for further proceedings, concluding that the lower court's failure to appoint a guardian ad litem for the mother under Neb.Rev.Stat. § 43-292.01 was plain error that required reversal regardless of her representation by counsel or competency evaluation.

family lawprocedure

In State v. Patterson, the appellant sought reimbursement of $96.19 in photocopy and postage costs under Neb. Rev. Stat. § 25-2307 after his unsuccessful postconviction relief appeal, claiming the State was required to pay such expenses because he had proceeded in forma pauperis. The district court denied the motion, ruling that it lacked jurisdiction and that the request had no merit. The Court of Appeals reversed, holding that the statute does not impose a requirement that reimbursement requests be filed while an appeal is pending and that the district court's order was appealable as a post-judgment summary application. The court reasoned that the phrase "on appeal" in the statute merely describes the context in which in forma pauperis status applies to the payment of appellate brief printing costs, without specifying any deadline for seeking reimbursement. The case was remanded for an evidentiary hearing because the district court had denied the motion without notice, evidence, or a record.

criminal lawprocedure

This case involved the Nebraska Department of Motor Vehicles' revocation of Parker J. Law's driving privileges for one year after his arrest for driving under the influence and refusal to submit to a chemical test. The sworn report submitted by one of the two listed arresting officers contained all required statutory details but was signed by only one officer. The district court reversed the revocation, finding the report defective and insufficient to establish jurisdiction. On appeal, the Nebraska Court of Appeals held that the omission of the second signature was a technical defect rather than a jurisdictional one because the report still conveyed the information mandated by Neb. Rev. Stat. § 60-498.01(2). The court therefore reversed the district court's decision and remanded with directions to affirm the DMV's original revocation order.

criminal lawprocedure

In State v. Ramirez, the defendant was charged with failure to stop after a personal injury accident and willful reckless driving following a car crash in which he was driving, his passenger was injured, and he left the scene without providing assistance. The trial court denied his motion for a directed verdict, a jury convicted him on both counts, and he appealed on grounds that the evidence was insufficient to prove he failed to render reasonable assistance under the statute. The Nebraska Court of Appeals affirmed the convictions, holding that the evidence, viewed in the light most favorable to the state, allowed a rational jury to find the essential elements proven beyond a reasonable doubt, including that Ramirez had already fled without assisting and that his departure rendered any later police instructions irrelevant to his duty.

criminal lawprocedure

The case involved Bradley A. Gay's appeal of his conviction for third-degree domestic assault against Amy Walter under Neb. Rev. Stat. § 28-323. The Nebraska Court of Appeals affirmed the conviction, holding that there was sufficient evidence to establish that Walter was Gay's intimate partner. The court reasoned that testimony from Gay, Walter, and their families demonstrated they were in a dating relationship characterized by the expectation of affectional involvement, as they had been together for about a year, were considered boyfriend and girlfriend, and the altercation stemmed from jealousy over potential infidelity.

criminal lawfamily law

This case is a divorce proceeding in which Gregory Ging appealed the district court's division of marital property, focusing on his OPPD 457 retirement account. The Nebraska Court of Appeals affirmed the decree, which awarded Natalie Ging a lump-sum payment of $95,845.50 from Gregory's account (after accounting for a disputed loan) along with her own retirement accounts, divided the parties' other assets and debts equally where appropriate, and ordered equal division of pensions via QDRO. The court held that the trial court did not abuse its discretion by valuing the accounts based on evidence presented at trial rather than later market changes or by choosing a fixed amount over a percentage split, as fluctuations affect both parties' accounts and no gross inequity was shown.

family lawproperty

This case arose from a 2005 collision at a railroad crossing in Thayer County, Nebraska, in which passenger Krista Rosencrans was seriously injured when the driver of her vehicle failed to stop for an oncoming train. Rosencrans and another plaintiff sued Thayer County and the State of Nebraska, alleging negligence in the maintenance and signage of the crossing. The district court granted summary judgment to both defendants, and the Nebraska Court of Appeals affirmed. The court held that the defendants were protected by sovereign immunity because decisions about installing and maintaining traffic-control and railroad-crossing devices are discretionary functions under the Political Subdivisions Tort Claims Act and the State Tort Claims Act. The court also concluded that the driver's failure to perceive and yield to the visible train was the sole proximate cause of the accident.

torts & liability

The case involved the Salvation Army suing James and Tina Kyle and James Ewers for damages to their thrift store building and contents caused by a fire that started in the Kyles' adjacent building due to careless smoking and lack of fire safety measures. The district court directed a verdict against the Salvation Army on claims for the building loss and demolition costs but allowed the jury to award damages for lost equipment and inventory. On appeal, the Nebraska Court of Appeals reversed the directed verdict, holding that issues of negligence and proximate cause regarding the building damages presented questions for the jury, as the defendants owed a duty to manage their property reasonably to avoid harming adjoining property.

propertytorts & liability

Annette I. Mace-Main sued the City of Omaha and the Metropolitan Utilities District (MUD) under the Nebraska Political Subdivisions Tort Claims Act for injuries sustained when she fell after stepping on a defective manhole cover on a public sidewalk. The district court dismissed the claim against MUD for failure to file within the one-year statutory period and granted summary judgment to the City. On appeal, the Nebraska Court of Appeals affirmed, holding that MUD owned and was responsible for maintaining the watermeter pit and its cover, while the City had no duty regarding it. The court reasoned that statutes assign liability for the water system solely to MUD and that the sidewalk itself was not defective.

torts & liabilityprocedure