867 N.W.2d 651
Neb. Ct. App.2015Background
- Christine and Terry Wilson divorced by decree that divided retirement funds, equity in the marital home and other property, and ordered Christine to vacate the marital home by a set date; no direct appeal from the original decree.
- Christine failed to vacate the marital home; Terry moved to determine amounts due and sought offsets for mortgage payments and temporary support he paid, which the district court granted and held Christine in contempt.
- This court (Wilson v. Wilson, 19 Neb. App. 103) reversed the district court for effectively modifying the decree without following modification procedures and remanded.
- On remand, Terry filed a formal complaint to modify the decree alleging a material change in circumstances (delay in entry of decree, Christine’s failure to vacate/sell/cooperate, alleged damage to the home, continued mortgage payments and distributions to Christine). The district court modified the decree, citing this court’s prior language as indicating a change-of-circumstances basis.
- Christine appealed but failed to include the required separate "assignments of error" section in her appellate brief, prompting this court to review only for plain error and to affirm because no plain error was found.
Issues
| Issue | Plaintiff's Argument (Christine) | Defendant's Argument (Terry) | Held |
|---|---|---|---|
| Whether Christine’s brief complied with Neb. Ct. R. App. P. § 2-109(D)(1)(e) by presenting assignments of error | Christine: headings in argument section adequately state assignments; failure is form not substance | Terry: brief noncompliance forecloses review except for plain error | Held: Brief failed to comply; appellate court will not address assigned errors and may review only for plain error |
| Whether the district court properly modified the property division based on change in circumstances | Christine: property awards not modifiable absent fraud or gross inequity; modification was improper | Terry: change in circumstances (postdecree conduct and payments) justified modification to avoid windfall | Held: Court declined to decide merits because of briefing defect but reviewed for plain error and found none; affirmed modification |
| Whether Wilson v. Wilson (prior Neb. App. opinion) authorized modification on change-of-circumstances basis | Christine: prior opinion did not authorize modification; property awards generally not modifiable | Terry: district court interpreted prior opinion as indicating material change and binding law of the case | Held: This court disapproved language in its prior opinion suggesting general modifiability; reaffirmed rule that property awards generally not modifiable except for fraud or gross inequity |
| Whether plain error review is available where the appellant raised the issue at trial | Christine: sought de novo review; implied plain error not applicable | Terry: urged deference to district court’s ruling | Held: Plain error review is discretionary; plain error requires an error plainly evident and not complained of at trial—because the property-modification issue was litigated below, the majority declined to find plain error |
Key Cases Cited
- City of Gordon v. Montana Feeders, Corp., 273 Neb. 402 (Sup. Ct. 2007) (Supreme Court may adopt rules governing appellate practice and procedure)
- Steffy v. Steffy, 287 Neb. 529 (Sup. Ct. 2014) (failure to include assignments of error may limit review to plain error; discretionary plain error review)
- In re Interest of Samantha L. & Jasmine L., 286 Neb. 778 (Sup. Ct. 2013) (assignments-of-error requirement and plain-error review for noncompliant briefs)
- In re Interest of Jamyia M., 281 Neb. 964 (Sup. Ct. 2011) (enforcing § 2-109(D)(1)(e) and consequences of noncompliance)
- Davis v. Davis, 265 Neb. 790 (Sup. Ct. 2003) (property awards generally not modifiable absent fraud or gross inequity)
- Gruber v. Gruber, 261 Neb. 914 (Sup. Ct. 2001) (same principle on stability of property division)
- Bokelman v. Bokelman, 202 Neb. 17 (Sup. Ct. 1978) (property division finality absent fraud/gross inequity)
- In re Estate of Morse, 248 Neb. 896 (Sup. Ct. 1995) (plain error is error plainly evident and not complained of at trial; issues raised at trial cannot be basis for plain error)