State v. McColery
919 N.W.2d 153
Neb.2018Background
- In 1994 the State obtained a child support judgment against Scott McColery; by 2015 he had substantial arrears (~$18,000).
- McColery posted a $5,000 appearance bond in a 2015 county criminal case; 90% was returnable on appearance. The clerk held the deposit as recognizance.
- McColery assigned his contingent right to the bond return to his attorney, Brett McArthur, who filed the assignment in county court before funds were released.
- The State filed an affidavit of lien for past-due child support and later initiated garnishment against the bond funds held by the court clerk.
- McArthur intervened and moved to quash garnishment, arguing that appearance bond money is not “personal property registered with any county office” under Neb. Rev. Stat. § 42-371; the district court rejected that argument and ordered the funds paid to the Child Support Payment Center.
- The Nebraska Supreme Court reversed, holding that money deposited as recognizance is not “registered personal property” under § 42-371 and thus the statutory lien did not automatically attach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appearance bond funds held by the court are “personal property registered with any county office” under Neb. Rev. Stat. § 42-371 | State: clerk’s records assign ID numbers and catalog bond deposits by defendant, so deposits are “registered” and the child support lien automatically attached on deposit | McArthur: a bond deposit is merely a "deposit"/recognizance, not registration; county court is not a county office for § 42-371 purposes | Court: "registered" must be read narrowly; bail deposits are not registered personal property under § 42-371, so the automatic lien did not attach |
Key Cases Cited
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (statutory limits on judgment liens and execution procedures)
- Fox v. Whitbeck, 286 Neb. 134 (treatment of judgment liens and statutory construction in enforcement contexts)
- Else v. Else, 219 Neb. 878 (court’s limited role to interpret statutes irrespective of policy views)
- State Bank v. Carson, 4 Neb. 498 (historical rule on when judgment liens bind property)
- Action Realty Co. v. Miller, 191 Neb. 381 (principle that child support judgments constitute liens like other monetary judgments)