Shawn E. on behalf of Grace E. v. Diane S. , 300 Neb. 289 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/24/2018 09:09 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.
    Cite as 
    300 Neb. 289
    Shawn E.       on behalf of  Grace E.,
    a minor child, appellant, v.     Diane S.
    and    State   of   Nebraska, appellees.
    ___ N.W.2d ___
    Filed June 22, 2018.    No. S-17-074.
    1.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    2.	 Moot Question: Appeal and Error. An appellate court may choose to
    review an otherwise moot case under the public interest exception if it
    involves a matter affecting the public interest or when other rights or
    liabilities may be affected by its determination.
    3.	 Moot Question: Words and Phrases. The public interest exception
    requires a consideration of the public or private nature of the question
    presented, the desirability of an authoritative adjudication for future
    guidance of public officials, and the likelihood of future recurrence of
    the same or a similar problem.
    4.	 Garnishment. Garnishment in aid of execution is a provisional remedy
    created by statute directing the procedure to obtain such relief.
    5.	 Final Orders: Words and Phrases. A substantial right is an essential
    legal right.
    6.	 Final Orders: Appeal and Error. A substantial right is affected if an
    order affects the subject matter of the litigation, such as diminishing a
    claim or defense that was available to an appellant before the order from
    which an appeal is taken.
    7.	 Final Orders: Dismissal and Nonsuit: Appeal and Error. Without
    a final order, an appellate court lacks jurisdiction and must dismiss
    the appeal.
    Petition for further review from the Court of Appeals,
    Moore, Chief Judge, and R iedmann, Judge, and Inbody,
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    SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.
    Cite as 
    300 Neb. 289
    Judge, Retired, on appeal thereto from the District Court for
    Buffalo County, John H. Marsh, Judge. Judgment of Court of
    Appeals affirmed.
    Shawn E., pro se.
    Shawn R. Eatherton, Buffalo County Attorney, and Kari R.
    Fisk for appellee State of Nebraska.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and H all, District Judge.
    Cassel, J.
    INTRODUCTION
    As a matter of first impression, we consider whether a judg-
    ment debtor who, using the procedure specified in Neb. Rev.
    Stat. § 25-1011 (Reissue 2016), unsuccessfully objects to a
    garnishment may immediately appeal. Because we conclude
    that a substantial right is not affected until judgment is entered
    in the garnishment, an appeal must wait. The Nebraska Court
    of Appeals correctly dismissed Shawn E.’s premature appeal
    for lack of jurisdiction, and we affirm its decision.
    BACKGROUND
    The State of Nebraska initiated a garnishment action against
    Shawn, an inmate residing at the Nebraska State Penitentiary,
    alleging that he owed $3,097.67 in past due child support and
    $2,499.54 in medical support for a total of $5,597.21. It caused
    a summons and order of garnishment to be sent to “the gar-
    nishee, [the] Nebraska Department of Corrections,” to recover
    money in its possession belonging to Shawn.
    Shawn requested a hearing, asserting that he did not owe
    the amount of the judgment. A hearing was held, during which
    Shawn appeared telephonically. The State offered certified
    copies of Shawn’s Department of Health and Human Services
    child support payment history and medical support payment
    history, which were received into evidence. The court took
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    SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.
    Cite as 
    300 Neb. 289
    judicial notice of a journal entry establishing Shawn’s child
    support obligation in the amount of $379 per month and cash
    medical support obligation in the amount of $62 per month. It
    also took judicial notice of a second journal entry suspending
    the child support portion of the prior order.
    At the hearing, Shawn argued that he did not owe the
    amount alleged and that there was no way he could make the
    payments the State claimed he owed. He further alleged that
    the Department of Health and Human Services “is charging
    me $62 . . . per month . . . for services that my daughter is
    not receiving.”
    The court noted that the cash medical support obligation
    was never suspended and that the child support arrearage was
    for arrearage accumulated prior to the suspension of the child
    support. It therefore found that Shawn’s arguments were not a
    defense to the fact that the debt was owed or that garnishment
    was appropriate.
    Shawn requested a continuance so he could call on witnesses
    to determine that the “$62 is also suspended” and that the
    child’s mother does not receive services from the Department
    of Health and Human Services. The district court denied this
    request and overruled Shawn’s objection to the garnishment. In
    its journal entry and order overruling the objection, it ordered
    that “the garnishment may proceed.”
    Shawn appealed and assigned that the district court erred in
    (1) ordering the garnishment “to proceed on the finding that
    [he] owes $5,597.27” and (2) disregarding his verbal motion
    for a continuance.
    But, before considering these arguments, the Court of
    Appeals addressed whether it had jurisdiction in a memoran-
    dum opinion filed January 24, 2018. It concluded that because
    the order did not determine that the State was entitled to funds
    held by the garnishee and did not order any execution of a gar-
    nishment, the order did not affect Shawn’s substantial rights.
    Furthermore, it noted that Shawn’s rights could be effectively
    vindicated in an appeal from the final judgment. Finding no
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    SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.
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    final order, the Court of Appeals determined that it lacked
    jurisdiction and dismissed the appeal.
    We granted Shawn’s petition for further review.
    ASSIGNMENT OF ERROR
    Shawn asserts that he appealed from a final order, because
    the order that the garnishment “may proceed” affected a sub-
    stantial right and was made in a special proceeding.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law.1
    ANALYSIS
    At oral argument, the State confessed that it was abandoning
    the garnishment in light of the garnishee’s answers to inter-
    rogatories showing only $0.07 belonging to Shawn. Thus, the
    State suggests that the appeal may be moot.
    [2,3] However, an appellate court may choose to review an
    otherwise moot case under the public interest exception if it
    involves a matter affecting the public interest or when other
    rights or liabilities may be affected by its determination.2 The
    public interest exception requires a consideration of the public
    or private nature of the question presented, the desirability
    of an authoritative adjudication for future guidance of public
    officials, and the likelihood of future recurrence of the same
    or a similar problem.3 Because the finality of orders overrul-
    ing judgment debtors’ objections under § 25-1011 is a public
    matter deserving authoritative adjudication for future guid-
    ance of public officials and is likely to recur, we choose to
    review the matter.
    Shawn argues that the district court’s order was a final
    order, because it affected a substantial right and determined the
    1
    Deleon v. Reinke Mfg. Co., 
    287 Neb. 419
    , 
    843 N.W.2d 601
    (2014).
    2
    Nesbitt v. Frakes, ante p. 1, ___ N.W.2d ___ (2018).
    3
    
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    outcome in a special proceeding. While it is well established
    that garnishment in aid of execution is a legal statutory remedy,
    we have not always been consistent in describing its nature.4
    At various times we have described garnishment as a legal
    action5 or as a special proceeding,6 and we have even alluded
    to a challenge to a garnishment as a summary application in
    an action after judgment is rendered.7 But, we need not resolve
    this tangle of garnishment precedents. Clearly, there was no
    judgment in the garnishment proceeding. And all three types
    of final orders require that the order affect a substantial right.
    Here, no substantial right was affected, which is dispositive.
    It is first helpful to summarize the procedure for a garnish-
    ment in aid of execution. Because this appeal does not involve
    the garnishment of wages, we omit those statutes which impose
    additional requirements for the garnishment of wages.
    Garnishment Procedure
    [4] Garnishment in aid of execution is a provisional remedy
    created by statute directing the procedure to obtain such relief.8
    A judgment creditor seeking a garnishment in aid of execu-
    tion begins by filing an affidavit and praecipe for summons,
    alleging that the garnishee has property of or is indebted to the
    judgment debtor.9 The court then issues a summons and inter-
    rogatories to be completed by the garnishee.10
    4
    See, e.g., ML Manager v. Jensen, 
    287 Neb. 171
    , 
    842 N.W.2d 566
    (2014)
    (legal proceeding); NC+ Hybrids v. Growers Seed Assn., 
    219 Neb. 296
    ,
    
    363 N.W.2d 362
    (1985) (incident to judgment or ancillary procedure),
    disapproved on other grounds, ML Manager, supra note 4.
    5
    See Barnett v. Peters, 
    254 Neb. 74
    , 
    574 N.W.2d 487
    (1998).
    6
    See Western Smelting & Refining Co. v. First Nat. Bank, 
    150 Neb. 477
    , 
    35 N.W.2d 116
    (1948).
    7
    See Cattle Nat. Bank & Trust Co. v. Watson, 
    293 Neb. 943
    , 
    880 N.W.2d 906
    (2016).
    8
    Early v. Belgrade-Hord Co., 
    133 Neb. 884
    , 
    277 N.W. 596
    (1938).
    9
    Neb. Rev. Stat. § 25-1056(1) (Reissue 2016).
    10
    
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    SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.
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    300 Neb. 289
    When the summons and interrogatories are issued, § 25-1011
    provides that a judgment debtor has the right to (1) receive
    notice of garnishment action by certified mail and (2) a hearing
    if the judgment debtor (a) believes the court should not allow
    a garnishment either because the funds sought are exempt or
    because the requested amount is not owed on the judgment
    and (b) timely requests a hearing on the issue. It is clear from
    the record that Shawn followed this procedure in challenging
    the garnishment.
    Although the hearing procedure of § 25-1011 became a part
    of that section in 1988,11 we have not addressed the finality of
    an order denying relief to a judgment debtor following such a
    hearing. We granted further review to do so.
    The procedure for what follows an unsuccessful § 25-1011
    challenge is not specifically laid out by statute. However,
    § 25-1056(1), which sets forth the general procedure for gar-
    nishments, provides in part, “Except when wages are involved,
    the garnishee shall hold the property of every description and
    the credits of the defendant in his or her possession or under
    his or her control at the time of the service of the summons and
    interrogatories until the further order of the court.” (Emphasis
    supplied.) This would suggest that even if the challenge is
    overruled—i.e., the court determines that the funds are not
    exempt and that the requested amount is owed on the judg-
    ment—the court must still enter a final judgment ordering the
    delivery of the judgment debtor’s property to the judgment
    creditor, in which case the judgment debtor’s entitlement to his
    or her property held by the garnishee is not affected until that
    final judgment.
    Substantial R ight A nalysis
    [5,6] A substantial right is an essential legal right.12 A sub-
    stantial right is affected if an order affects the subject matter of
    the litigation, such as diminishing a claim or defense that was
    11
    See 1988 Neb. Laws, L.B. 1030, § 14.
    12
    See Cattle Nat. Bank & Trust Co. v. Watson, supra note 7.
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    SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.
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    available to an appellant before the order from which an appeal
    is taken.13
    In the context of garnishment proceedings, we have held
    that an order affected a substantial right where it “autho-
    rized the seizure of property or money that would otherwise
    have remained in the [appellants’] ownership and control.”14
    However, the order here did not authorize the execution of a
    garnishment and did not determine that the State was entitled
    to the requested funds.
    Shawn suggests that the order affected a substantial right
    by providing that the garnishment “may proceed,” “because
    it implicates all manner of means of attachment provided for
    under title IV-D of the Social Security Act.”15 However, no
    attachment was actually ordered. Consequently, Shawn’s right
    to the funds was not affected. And, although the order dimin-
    ished Shawn’s defense that the amount alleged was not owed
    under the judgment, this claim can be effectively vindicated on
    appeal from the final judgment.
    [7] Because the order overruling Shawn’s challenge to the
    garnishment did not affect a substantial right, it was not a
    final, appealable order. Without a final order, an appellate court
    lacks jurisdiction and must dismiss the appeal.16 The Court of
    Appeals correctly did so, and we affirm its action.
    CONCLUSION
    Shawn prematurely appealed from a nonfinal order. Because
    the Court of Appeals correctly determined that it lacked juris-
    diction, we affirm its decision dismissing the appeal.
    A ffirmed.
    13
    
    Id. 14 Id.
    at 
    968, 880 N.W.2d at 926
    .
    15
    Brief for appellant in support of petition for further review at 4.
    16
    Connelly v. City of Omaha, 
    278 Neb. 311
    , 
    769 N.W.2d 394
    (2009).