Larson v. Larson ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
LARSON V. LARSON
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).
SARA A. LARSON, APPELLANT,
V.
PAUL E. LARSON, APPELLEE.
Filed June 6, 2023. No. A-22-836.
Appeal from the District Court for Douglas County: TRESSA M. ALIOTH, Judge. Affirmed.
Karisa D. Johnson, of Koukol, Johnson, Schmit & Milone, L.L.C., for appellant.
Mark F. Jacobs, of Bressman, Hoffman & Jacobs, P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Sara A. Larson appeals from an order of the district court for Douglas County finding that
she was not in willful contempt of court but ordering her to sell her and Paul E. Larson’s marital
home as provided in the parties’ dissolution decree. Based on the reasons that follow, we affirm.
BACKGROUND
Paul and Sara were divorced by a decree entered on November 11, 2017. The decree
provided that the marital home be listed for sale and sold at a mutually agreeable price. The
proceeds from the sale, after deducting the mortgage, real estate commissions, closing costs, and
reasonable and necessary repairs to the home, were to be divided equally between the parties. The
decree further indicated that Sara was to be responsible for the mortgage, taxes, and insurance on
the residence beginning October 1, 2017, until it was sold.
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In June 2022, Paul filed an application for an order to show cause asking the court to enter
an order requiring Sara to appear in court and show cause as to why she should not be held in
contempt for failing to sell the marital home.
Following a hearing, the court entered an order in October 2022 finding that Sara was not
in willful contempt of court. It stated that it was adhering to the plain language of the decree and
that Sara should follow the decree and the provision for selling the marital home. It ordered that
the marital home should be listed for sale and sold in accordance with the decree. No bill of
exceptions from the hearing exists in our record due to Sara’s counsel’s failure to timely request
its preparation.
ASSIGNMENTS OF ERROR
Sara assigns that the trial court erred in (1) failing to consider facts outside the four corners
of the decree, and (2) failing to find that the decree’s terms were ambiguous.
STANDARD OF REVIEW
When the bill of exceptions is absent, the court solely must examine the pleadings in
conjunction with the judgment reviewed. Rosberg v. Rosberg, 25 Neb. App. 856, 916 N.W.2d 62(2018). If the transcript, containing the pleadings and order in question, is sufficient to support the
judgment, it will be presumed on appeal that the evidence supports the trial court’s orders and
judgment. Id.ANALYSIS
Under Neb. Ct. R. App. P. § 2-105(B)(2)(a), previously § 2-105(B)(1)(a), an appellant must
file a request to prepare a bill of exceptions in the office of the district court clerk at the same time
the notice of appeal is filed. Failure to file such a request simultaneously constitutes a waiver by
the appellant of the right to request a bill of exceptions. See Rosberg v. Rosberg, supra. It is
incumbent upon the appellant to present a record supporting the errors assigned. Ginger Cove
Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017).
When there is no bill of exceptions, the court is limited to an examination of the pleadings
and the order in question. Murphy v. Murphy, 237 Neb. 406, 466 N.W.2d 87 (1991). If they are
sufficient to support the judgment, it will be presumed on appeal that the evidence supports the
trial court’s orders and judgment. Id.In this case, Sara’s counsel failed to timely request the bill of exceptions. Counsel filed
Sara’s notice of appeal on November 10, 2022, but failed to file a request to prepare a bill of
exceptions at the time the notice of appeal was filed. The bill of exceptions was stricken after we
overruled Sara’s motion to file the bill of exceptions out of time. The minute entry shows that the
motion was overruled for failure to show good cause under § 2-105(B)(2)(f). As such, no bill of
exceptions exists in our record due to counsel’s failure to timely request preparation of it or to
demonstrate good cause for this failure. Consequently, we must rely solely on the information
provided in the pleadings contained in the transcript.
Sara argues that the provision in the decree regarding the sale of the home is ambiguous
and that the trial court should have considered evidence outside the language in the decree. Paul’s
application states that the decree, entered November 1, 2017, provided that the marital home was
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to be sold and the proceeds split. He alleges that Sara had occupied the residence since the decree
was entered, and despite multiple requests by him to have the residence sold, Sara willfully refused
to cooperate with the sale of the home.
The trial court found that Sara was not in willful contempt of court, that it was adhering to
the plain language of the decree, and that Sara should follow the decree and the provision for
selling the martial home. It ordered that the marital home should be listed for sale and sold in
accordance with the decree. It further ordered that the parties split the proceeds of the sale equally
after deducting real estate commissions, closing costs, and any reasonable and necessary repairs
to the property. Sara was not entitled to any additional monetary amount for the sale of the home.
The actions described in the application for an order to show cause support the district
court’s finding that Sara should comply with the decree by listing the marital home for sale and
selling it. We conclude that the pleadings are sufficient to support the district court’s order, and
therefore, we presume that the evidence considered by the district court supported its decision to
adhere to the plain language of the decree and to order Sara to sell the marital home and split the
proceeds equally. See Murphy v. Murphy, supra.CONCLUSION
Because the pleadings support the district court’s order, we affirm.
AFFIRMED.
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