Stonerook v. Green ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STONEROOK V. GREEN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
CHRISTOPHER W. STONEROOK, APPELLANT,
V.
TONY GREEN ET AL., APPELLEES.
Filed May 17, 2016. No. A-15-394.
Appeal from the District Court for Lincoln County: DONALD E. ROWLANDS, Judge.
Affirmed.
Christopher W. Stonerook, pro se.
Douglas J. Peterson, Attorney General, and Danielle Jones, for appellees Tony Green,
Byron Van Patten, and Troy Reiners.
Claudine K. Thorne, Deputy Lincoln County Attorney, pro se, and for appellee Rebecca
Harling.
MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
MOORE, Chief Judge.
I. INTRODUCTION
Christopher W. Stonerook appeals from the order of the district court for Lincoln County,
which dismissed his complaint for permanent injunction with prejudice. For the reasons set forth
herein, we affirm.
II. BACKGROUND
In September 2001, Stonerook was found to be the biological father of a minor child born
in May 1997 and was ordered to pay child support of $500 per month to child’s mother, Sheila R.
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Clark. The order subjected Stonerook to income withholding if he became delinquent on his child
support obligation. Physical custody of the child was granted to Clark.
In October 2013, Stonerook filed a pro se complaint to modify custody and child support
in the paternity case. As of April 8, 2015, when the dismissal order was entered in the present case,
the modification complaint in the paternity case had not yet been set for hearing.
On February 3, 2015, Stonerook filed a complaint for permanent injunction under a
separate case number from the paternity case, naming as defendants six individuals in their official
capacities with the Nebraska Department of Health and Services’ Division of Children and Family
Services and Child Support Enforcement, the Nebraska Child Support Payment Center, and
attorneys with the Lincoln County Attorney’s office (collectively “the Appellees”). Stonerook
alleged that after having been awarded Social Security disability benefits, he learned that his
benefits were being garnished in the amount of $750 per month by the Nebraska Child Support
Enforcement Office. He also learned that his Social Security disability award for back pay in the
amount of approximately $14,000 had been seized due to his child support being in arrearage.
Stonerook alleged that he made further inquiries and was told that he was $3,026 in arrears and
that his monthly child support had increased to $750 per month. He alleged that after additional
inquiry, he was advised that the child support garnishment amount withheld from his disability
benefits could be reduced to $505 but “nothing else would be done until the custodial parent
showed the Child Support Office in North Platte proof the minor child was receiving dependent
benefits.” Stonerook sought a permanent injunction preventing the Appellees from seizing funds
from his Social Security disability benefits and back pay award without allowing him an
opportunity to appeal any seizure of funds he disputes. He also filed a motion for temporary
restraining order to enjoin the Appellees from “disbursing any type of payment from the funds
seized.”
The transcript includes an “INCOME WITHHOLDING FOR SUPPORT” form document
filed on February 5, 2015 in the paternity case. The document identifies Stonerook as the
“Employee/Obligor,” Clark as the “Custodial Party/Obligee,” and the Social Security
Administration as the “Employer/Income Withholder” and orders the withholding of a lump sum
payment of $3,526.79 to be remitted to the Nebraska Child Support Payment Center.
The Appellees filed motions to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), seeking
dismissal of Stonerook’s complaint for failure to state a claim upon which relief may be granted.
The record on appeal does not include a copy of appellee Chawnta Durham’s motion to dismiss.
On April 3, 2015, Stonerook filed a pleading opposing the motions to dismiss. In it, he
summarized the allegations of his complaint and also alleged that after his complaint had been
filed, “the Child Support Enforcement Office sent funds at the heart of this case to the custodial
parent.”
On April 6, 2015, the district court heard argument from the parties on the motions to
dismiss. The hearing was held in the judge’s chambers. Stonerook was present and appeared pro
se. Appellees Tony Green, Byron Van Patten, and Troy Reiners were represented by their attorney,
an Assistant Attorney General, who appeared by telephone. Appellees Rebecca Harling and
Claudine K. Thorne were represented by Thorne, a Deputy County Attorney. Appellee Durham
was present and represented by her attorney. No sworn testimony was given and no exhibits were
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offered and received into evidence, although the court took judicial notice of the court file in the
underlying paternity case and of the return of service upon Harling and Thorne. Arguments were
made by all of the parties on the record. At the hearing, Stonerook did not contest the representation
by Durham’s attorney that Durham is now in private practice and no longer employed by the
county attorney’s office, but he argued that she was employed there during a portion of the relevant
period and that he needed time to do discovery on the issue. The district court granted Durham’s
motion to dismiss during the hearing and took the remaining motions under advisement. We have
set forth further details of the hearing relevant to Stonerook’s arguments on appeal in the analysis
section below.
On April 8, 2015, the district court entered an order granting the motions to dismiss. The
court noted its dismissal of Durham from the case with prejudice and then set forth its findings
with respect to the remaining motions to dismiss. The court noted that during the hearing,
Stonerook did not contest the fact that the alleged arrearage in the underlying child support case
in the approximate amount of $3,500 had already been disbursed to Clark. The court found that a
request for injunction does not afford a remedy for what has already occurred, and accordingly,
dismissed any portion of the complaint for permanent injunction filed by Stonerook which sought
to prevent or enjoin seizure of a portion of his Social Security disability award for the payment of
his child support arrearage. With regard to the portion of the complaint seeking to prohibit the
seizure of future disability payments to pay current child support as it becomes due, the court found
that dismissal was also appropriate as Stonerook had another adequate remedy at law available;
namely his pending complaint to modify custody and child support in the underlying action. The
court dismissed the complaint with prejudice.
III. ASSIGNMENTS OF ERROR
Stonerook asserts, reordered, that the district court erred in (1) holding the hearing in
chambers, excluding the public from the hearing, (2) allowing evidence or testimony to be
presented in a telephonic hearing on the motions to dismiss, (3) interrupting Stonerook when he
presented oral arguments, (4) taking judicial notice of documents without allowing Stonerook the
opportunity to object, (5) holding Stonerook to the same standards as an attorney when appearing
pro se before the court, (6) dismissing Durham from the case with prejudice, (7) failing to accept
the plain meaning of a statute, (8) failing to follow the rule of stare decisis in its order, (9) ruling
that because the seizure of Stonerook’s disability benefits had been disbursed the complaint for
injunction must be dismissed, (10) finding that Stonerook had another remedy at law and that the
complaint to modify custody and child support is the proper remedy, and (11) granting the motions
to dismiss and dismissing the case with prejudice.
IV. STANDARD OF REVIEW
A district court’s grant of a motion to dismiss is reviewed de novo. Lamb v. Fraternal
Order of Police Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388 (2016). When reviewing an order
dismissing a complaint, an appellate court accepts as true all facts which are well pled and the
proper and reasonable inferences of law and fact which may be drawn therefrom, but not the
plaintiff’s conclusion. Id. To prevail against a motion to dismiss for failure to state a claim, a
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plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on
its face. Id. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary
element, the factual allegations, taken as true, are nonetheless plausible if they suggest the
existence of the element and raise a reasonable expectation that discovery will reveal evidence of
the element or claim. Id.
V. ANALYSIS
1. CONDUCT OF HEARING
(a) Exclusion of Public
Stonerook asserts that the district court erred in holding the hearing in chambers, thereby
excluding the public from the hearing, in violation of Neb. Ct. R. §§ 6-201 to 6-206. Although
many of the provisions in these guidelines are directed toward ensuring that a criminal defendant
receives a fair hearing, pursuant to Neb. Rev. Stat. § 24-1001 (Reissue 2008), “All judicial
proceedings of all courts established in this state must be open to the attendance of the public
unless otherwise specially provided by statute.”
Stonerook does not argue that the public was in fact excluded from the hearing, and there
is nothing in the record to suggest that this occurred. In his brief on appeal, Stonerook references
events occurring prior to the start of the hearing. He notes that he needed assistance from another
individual to carry his papers. He states that this individual was not allowed in the judge’s
chambers for the hearing. However, none of the information about this individual’s exclusion is
contained in the bill of exceptions for the hearing. An appellate brief generally may not expand
the evidentiary record and should limit itself to arguments supported by the record. Sellers v.
Sellers, 23 Neb. Ct. App. 219, 869 N.W.2d 703 (2015). Further, Stonerook did not object on the record
to the alleged exclusion of this individual, or any other member of the public, from the hearing. A
litigant’s failure to make a timely objection waives the right to assert prejudicial error on appeal.
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). Error without prejudice provides no
ground for relief on appeal. Id. This assignment of error is without merit.
(b) Receipt of Evidence at Telephonic Hearing
Stonerook asserts that the district court erred in allowing evidence or testimony to be
presented in a telephonic hearing on the motions to dismiss. In support of his argument, he cites
Rules of Dist. Ct. of Eleventh Jud. Dist. 11-3(C)(iii), which provides:
All hearings on all motions or pleadings may be heard by telephone conference. The party
wishing to set a motion by telephone conference shall arrange the time for the conference
and shall initiate the conference call and be responsible for the expense of the call. No oral
testimony may be adduced during any telephone conference. All evidence to be adduced
during any telephone conference shall be submitted to the court and to opposing counsel
no less than 5 days prior to the hearing. Any such telephone proceeding held pursuant to
Neb. Rev. Stat. § 24-734 (Reissue 1989) shall not exclude the general public except as
provided by law or Supreme Court rule.
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The hearing on the motions to dismiss was not conducted exclusively by telephone
conference. All of the parties and/or their counsel appeared in person for the hearing with the
exception of state official appellees Green, Van Patten, and Reiners, whose attorney appeared by
telephone. Stonerook did not object on the record to the attorney’s participation in this manner.
Thus, any error asserted by Stonerook to holding the hearing in part by telephone conference has
been waived. See In re Estate of Clinger, supra.
Further, no sworn testimony or other evidence was adduced during the hearing. Counsel
for the appellees did provide certain information upon inquiry by the court, as did Stonerook. The
state official appellees informed the court that $3,526.79 had been transmitted to Clark and that
this was the “amount of the arrearage at the time of the intercept.” Thorne also referenced this
dollar amount in her argument in support of the motion to dismiss filed by herself and Harling, the
remaining county attorney appellees. Stonerook argues that this information was evidence that
should have been submitted prior to the hearing pursuant to the rule. However, the statements or
arguments of counsel are not evidence and thus were not required to be disclosed prior to the
hearing. See In re Interest of Lawrence H., 16 Neb. Ct. App. 246, 743 N.W.2d 91 (2007) (attorney’s
assertions at trial are not to be treated as evidence).
The court did take judicial notice of the paternity case court file, which included
information concerning the withholding of Stonerook’s disability payment. However, Stonerook
was specifically asked if he had any objection to the court taking judicial notice of the file and
Stonerook stated that he did not. Thus, to the extent that Stonerook is asserting that this information
was improperly received by the court, he has waived any error in this regard. See In re Estate of
Clinger, supra.
This assignment of error is without merit.
(c) Interruptions by Court
Stonerook asserts that the district court erred in interrupting him when he presented oral
arguments. He argues that interruptions by the court took him by surprise, forced him to “defend
[his] position about things that [he] thought had nothing to do with a motion to dismiss,” and
prevented him from finishing his argument. Brief for appellant at 23. He argues that these
interruptions prevented him from receiving a fair and unbiased hearing.
The requirements of due process are satisfied if a person has reasonable notice and an
opportunity to be heard appropriate to the nature of the proceeding and the character of the rights
which might be affected by it. Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016). Due
process requires a neutral, or unbiased, adjudicatory decisionmaker. In re S.J., 283 Neb. 507, 810
N.W.2d 720 (2012). Such decisionmakers serve with a presumption of honesty and integrity. Id.
A party seeking to disqualify an adjudicator because of bias or prejudice bears the heavy burden
of overcoming the presumption of impartiality. Id.
We have reviewed the bill of exceptions from the hearing and do not find evidence of
interruptions of Stonerook by the court which prevented Stonerook from finishing his arguments.
The court adequately explained the procedure for the hearing to Stonerook and gave him ample
time to present his position in connection with the motions to dismiss. The court heard arguments
by counsel on each of the three motions to dismiss, and Stonerook was given the opportunity to
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address the arguments raised by the proponent of each motion. The questions asked of Stonerook
by the court guided the discussion toward the relevant issues and provided the court with more
useful information than might have been gained had Stonerook simply read his prepared statement.
A trial judge has broad discretion over the conduct of a trial, and, absent abuse, that discretion
should be respected. Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009). We find
no abuse of discretion or denial of due process resulting from the court’s conduct of the hearing.
Stonerook also references a brief in support of his motion for temporary restraining order
that he argues was excluded from the transcript. However, briefs are to be presented to the judge
and not filed with the clerk. See Neb. Ct. R. § 6-1505. An appellate court cannot consider as
evidence statements made by the parties at oral argument or in briefs, as these are matters outside
the record. Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). It does appear that the
district court liberally construed Stonerook’s complaint to include the allegations contained in the
motion for temporary restraining order, and we have addressed issues related to the dismissal of
his complaint below.
This assignment of error is without merit.
(d) Judicial Notice
Stonerook asserts that the district court erred in taking judicial notice of documents without
allowing him the opportunity to object. As mentioned above, the district court took judicial notice
of the paternity case court file, after Stonerook affirmatively stated that he had no objection. In
addition, the court took judicial notice of the proof of service of the summonses served upon
Thorne and Harling in this case on February 17, 2015. Stonerook did not object to the court’s
taking judicial notice of the proof of service.
A court may not take judicial notice of disputed facts. Sherman v. Sherman, 18 Neb. Ct. App.
342, 781 N.W.2d 615 (2010). “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or
(b) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Neb. Rev. Stat. § 27-201(2) (Reissue 2008). As a subject for judicial
notice, existence of court records and certain judicial action reflected in a court’s record are, in
accordance with § 27-201(2)(b), facts which are capable of accurate and ready determination by
resort to sources whose accuracy cannot be reasonably questioned. In re Ty M., 265 Neb. 150, 655
N.W.2d 672 (2003).
The paternity case court file and the return of service documents were part of the district
court records and could properly be judicially noticed. Stonerook argues that he did not know what
judicial notice was because the court did not explain it to him earlier in the hearing when it took
judicial notice of the file in the underlying paternity case. He argues further that if the court had
asked him whether he objected, he would have done so. We do not find these arguments
persuasive. A pro se litigant will receive the same consideration as if he or she had been represented
by an attorney, and, concurrently, that litigant is held to the same standards as one who is
represented by counsel. Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015). Although
the court did not specifically ask Stonerook whether he objected to the judicial notice taken of the
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return of service documents, Stonerook could have done so. The court did not err in taking judicial
notice of these documents.
Stonerook’s argument regarding the proof of service documents seems to be that regardless
of the timing of the service, the lump sum collected should not have been disbursed because he
and another individual had delivered copies of his complaint, motion for temporary restraining
order, and supporting brief to the offices of Thorne and Harling on February 3, 2015, the same day
he filed his complaint and motion with the court. Stonerook also asserts that he called the clerk of
the court to find out if his motion for temporary restraining order had been granted, was told that
the motion would not be set for hearing until all parties had been served either by the sheriff or by
certified mail, and then he complied with this request. None of this information regarding delivery
of the pleadings to the county attorney’s office is part of the record on appeal. See Sellers v. Sellers,
23 Neb. Ct. App. 219, 869 N.W.2d 703 (2015) (appellate brief generally may not expand evidentiary
record and should limit itself to arguments supported by record); Bedore v. Ranch Oil Co., 282
Neb. 553, 805 N.W.2d 68 (2011) (appellate court cannot consider as evidence statements made by
parties at oral argument or in briefs, as these are matters outside record). More importantly, the
return of service documents are really of no consequence in this case as there was no restraining
order in effect prior to the disbursement of the lump sum funds.
This assignment of error is without merit.
(e) Pro Se Standards
Stonerook asserts that the district court erred in holding him to the same standards as an
attorney when appearing pro se before the court. As noted above, a pro se litigant is held to the
same standards as one who is represented by counsel. See Friedman v. Friedman, supra. He argues
that the court should have construed his pro se pleadings liberally. As noted above, we see no
indication that the court did not do so within the limits of Nebraska’s liberal notice pleading rules.
See State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014) (while notice
pleading has liberalized requirements, it is not without limits; generous construction of pro se
complaints is also not without limits). This assignment of error is without merit.
2. ISSUES NOT PASSED UPON BY DISTRICT COURT
Stonerook asserts that the district court erred in failing to accept the plain meaning of a
statute, specifically, Neb. Rev. Stat. § 43-3342.02(2) (Reissue 2008) (concerning disbursement of
collections toward arrears by State Disbursement Unit) and Neb. Rev. Stat. § 42-364.13 (Reissue
2008) (support order requirements), with which he argues the Appellees failed to comply. He also
asserts that the court erred in failing to follow the rule of stare decisis in its order and relies on
cases considering the issue of applying Social Security benefits to meet a parent’s child support
obligation in support of his argument. E.g., Gress v. Gress, 257 Neb. 112, 596 N.W.2d 8 (1999);
Hanthorn v. Hanthorn, 236 Neb. 225, 460 N.W.2d 650 (1990). Although Stonerook raised these
issues in his written opposition to the Appellees’ motions to dismiss, these issues were not passed
upon by the district court in ruling on the motions. To the extent that the court addressed the case
law relied on by Stonerook in its finding that any offset of his disability award against his
continuing child support obligation could be litigated in the paternity case, we address that issue
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below in connection with the court’s finding that Stonerook had an adequate remedy at law. The
court did not make any findings with respect to the statute referenced by Stonerook in his
opposition to the motions to dismiss. Accordingly, we do not address these issues further in
connection with these particular assignments of error. An appellate court will not consider an issue
on appeal that was not presented to or passed upon by the trial court. Linscott v. Shasteen, 288
Neb. 276, 847 N.W.2d 283 (2014).
3. DISMISSAL OF COMPLAINT
(a) Conversion to Summary Judgment
Stonerook argues that the district court’s decision should be reversed because it considered
evidence outside the pleadings, which converted the motions for dismissal into motions for
summary judgment.
Because a motion pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) tests the legal sufficiency
of the complaint, not the claim’s substantive merits, a court may typically look only at the face of
the complaint to decide a motion to dismiss. DMK Biodiesel, LLC v. McCoy, 285 Neb. 974, 830
N.W.2d 490 (2013). Dismissal under Neb. Ct. R. Pldg. § 6-1112(b)(6) should be granted only in
the unusual case in which a plaintiff includes allegations that show on the face of the complaint
that there is some insuperable bar to relief. Id.
When matters outside the pleading are presented by the parties and accepted by the trial
court with respect to a motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), the motion shall
be treated as a motion for summary judgment and the parties shall be given a reasonable
opportunity to present all material made pertinent to such a motion by statute. Brothers v. Kimball
County Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015). A court may take judicial notice of matters
of public record without converting a motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6)
into a motion for summary judgment. DMK Biodiesel, LLC v. McCoy, supra. For purposes of a
motion to dismiss, a trial court generally must ignore materials outside the pleadings, but it may
consider some materials that are part of the public record or do not contradict the complaint, as
well as materials that are necessarily embraced by the pleadings. Id. Documents embraced by the
complaint are not considered matters outside the pleading. Id. Documents embraced by the
pleadings are materials alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleading. Id. Matters outside the pleadings can include written
or oral evidence either in support of or in opposition to the pleading which provides some
substantiation for and does not merely reiterate what is said in the pleadings. Crane Sales & Service
v. Seneca Ins. Co., 276 Neb. 372, 754 N.W.2d 607 (2008).
The Nebraska Supreme Court has stated:
Federal courts have also noted that when a motion to dismiss is converted to a motion for
summary judgment, reversal of the ‘ruling may become necessary if the district court has
not provided the adversely affected party with notice and an opportunity to respond.’ . . .
‘The primary vice of unexpected conversion to summary judgment is that it denies the
surprised party sufficient opportunity to discover and bring forward factual matters which
may become relevant only in the summary judgment, and not the dismissal, context.’ . . .
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Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466, 470-71, 730 N.W.2d 798, 803 (2007)
(citations omitted). But see, Brothers v. Kimball County Hosp., supra (failure to give plaintiff
opportunity to present evidence in opposition to converted motion harmless because plaintiff’s
claim failed as matter of law).
With regard to the motions to dismiss filed by the appellees (except Durham), we conclude
that the motions to dismiss were not converted to motions for summary judgment. First, as we note
above, the statements made by counsel regarding the disbursement of the lump sum payment to
Clark were not evidence. Second, the taking of judicial notice of the file in the underlying paternity
case (which contained information supporting the statements of counsel concerning the
disbursement) did not convert the motions to dismiss to motions for summary judgment. See, DMK
Biodiesel, LLC v. McCoy, supra.
With respect to Durham’s motion to dismiss, Stonerook argues that the district court
considered outside evidence when it allowed her attorney to state that Durham was no longer
employed by the county attorney’s office. Given our finding below that Stonerook’s complaint
failed to state a cause of action, we need not address this argument further. See Ichtertz v.
Orthopaedic Specialists of Neb., supra (finding court converted motion by considering matters
outside pleadings but declining to resolve appeal on that basis as error in procedure regarding
motion to dismiss was not decisive of matter); Brothers v. Kimball County Hosp., supra (failure
to give plaintiff opportunity to present evidence in opposition to converted motion harmless
because plaintiff’s claim failed as matter of law).
We find no merit to this assigned error.
(b) Funds Already Disbursed
Stonerook asserts that the district court erred in ruling that because the seizure of his
disability benefits had been disbursed, the complaint for injunction must be dismissed. Injunctive
relief is intended to prevent future harm and is not available when the act complained of is already
completed. Nebuda v. Dodge County School Dist. 0062, 290 Neb. 740, 861 N.W.2d 742 (2015).
The court judicially noticed the file in the underlying paternity case. Documentation filed in that
case shows that $3,526.79 of Stonerook’s Social Security disability benefits were being withheld.
Stonerook acknowledged in his responsive pleading that the seized funds had already been
disbursed to Clark and did not dispute that fact during the hearing. Because this act is already
completed, it cannot be prevented by injunctive relief. The court did not err in dismissing his
complaint on this basis.
(c) Adequate Remedy at Law
Stonerook asserts that the district court erred in finding that he had another remedy at law
and that the complaint to modify custody and child support is the proper remedy.
An injunction is an extraordinary remedy and ordinarily should not be granted except in a
clear case where there is actual and substantial injury. Kobza v. Bowers, 23 Neb. Ct. App. 118, 868
N.W.2d 806 (2015). Injunctive relief should not be granted unless the right is clear, the damage is
irreparable, and the remedy at law is inadequate to prevent a failure of justice. Id. An injury is
irreparable when it is of such a character or nature that the party injured cannot be adequately
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compensated therefor in damages, or when the damages which may result therefrom cannot be
measured by any certain pecuniary standard. Id. An adequate remedy at law means a remedy which
is plain and complete and as practical and efficient to the ends of justice and its prompt
administration as the remedy in equity. Fyfe v. Tabor Turnpost, L.L.C., 22 Neb. Ct. App. 711, 860
N.W.2d 415 (2015).
In his complaint, Stonerook set forth the details of the child support award in the paternity
case and of his disability benefits. He alleges that he was told certain things by unnamed people
about the garnishment of his disability benefits for his child support arrearages and future support
obligations. He alleges that he was told his remedy was to file a child support modification and to
show proof that the child was receiving dependent benefits.
Stonerook does not allege that he would suffer irreparable harm and damage absent an
injunction or that he has no other adequate remedy at law. He does not allege that he tried and
failed to obtain relief through the methods suggested to him by unnamed individuals. He does not
allege how any of the named defendants were involved in the matters addressed in his complaint.
At the time he filed for injunctive relief, Stonerook had an adequate remedy at law
concerning his future disability payments that he could have pursued in the paternity case. Social
Security payments made to a parent’s child on account of the parent’s disability should be
considered as credits toward the parent’s court-ordered support obligation in the absence of
circumstances making the allowance of such a credit inequitable. Gress v. Gress, 257 Neb. 112,
596 N.W.2d 8 (1999); Hanthorn v. Hanthorn, 236 Neb. 225, 460 N.W.2d 650 (1990). Stonerook
argues that his remedy was not through the pending modification action because a request to credit
Social Security benefits is a request for a change in only the source of payment, and therefore does
not require a modification hearing, but, rather, only an opportunity for the custodial parent to
adduce evidence of any inequity that might occur as the result of crediting those benefits to
court-ordered child support. See Gress v. Gress, supra. While Stonerook correctly states the law,
he could have amended his modification complaint to include a request for credit. Notably, the
requests made in Gress and Hanthorn were filed in the underlying dissolution cases. See, also,
Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015) (remanding to determine whether
father entitled to credit against future support payments to offset retroactive reduction of child
support obligation). While Stonerook may not have known what his child’s direct disability
benefits would be until Clark filed for those benefits, he could have sought a temporary abatement
of his support obligation in the modification proceeding until the issue had been resolved, a
procedure that could have protected his interests until the court determined his need to reduce his
support payments. See Johnson v. Johnson, supra. Finally, we note that only a limited number of
future support payments remain at issue as Stonerook’s child will turn 19 in May of 2016.
The district court did not err in finding that Stonerook had another remedy at law, which
could be pursued through the paternity case. The district court did not err in dismissing Stonerook’s
complaint for failure to state a claim for injunctive relief.
VI. CONCLUSION
The district court did not err in dismissing Stonerook’s complaint for permanent injunction.
AFFIRMED.
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