Lesley v. Lesley
Date Filed2022-12-13
DocketA-22-016
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
LESLEY V. LESLEY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. Ā§ 2-102(E).
JUSTIN M. LESLEY, APPELLEE,
V.
PRECIOUS A. LESLEY, APPELLANT.
Filed December 13, 2022. No. A-22-016.
Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
Precious A. Lesley, pro se.
Justin M. Lesley, pro se.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
ARTERBURN, Judge.
INTRODUCTION
Precious A. Lesley appeals from an order of the district court for Sarpy County finding her
in willful contempt of a prior court order that required her to sell the home she shared with her
former husband, Justin M. Lesley, and return his personal property that remained in her possession.
Upon our review of the record, we find that the court did not err in finding Precious to be in willful
contempt or in imposing its sentence and purge plan.
BACKGROUND
Justin and Precious were married on May 23, 2015. In October 2019, the district court
entered a decree dissolving their marriage. Within the decree, the district court issued the following
order:
Each party shall keep the property in each partyās possession and shall be
responsible for the debts each has incurred, save an[d] except the following:
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[Precious] is awarded the family residence located [on] Chandler Street and shall
keep [Justin] free and harmless from any liability associated theretofore. Within 90 days,
[Precious] shall refinance the residence in her name only. If [Precious] is unable to
refinance the property in her name only, the residence shall be sold within 90 days
thereafter. Any debt or surplus resulting from the sale of the home shall be divided equally
between the parties. . . .
[Precious] shall prepare [Justinās] clothing and the lawnmower for pick up by
[Justin] at 6:00 p.m. on Wednesday, October 23, 2019. [Justin] shall be accompanied by a
neutral third party for the pick up of the property.
On August 24, 2021, almost 2 years after the decree was entered, Justin filed an application
for an order to show cause with the court claiming that Precious had failed to sell the marital home
after being unable to refinance the mortgage loan. He also claimed that Precious had never allowed
him to retrieve the lawnmower and his clothing in her possession. An order to show cause was
issued the next day with a hearing on the matter scheduled for September 24. Precious and Justin
attended the hearing in person.
At the start of the September 24, 2021, hearing, Precious informed the court that she had
received notice of the hearing only via email. The court then explained that personal service needed
to be properly effectuated and asked whether Precious was agreeing to come into court on the
application to show cause. Precious responded affirmatively, stating that the matter needed to be
settled. The court then explained that incarceration was one of the possible sanctions the court
could impose if Precious was found in willful contempt of court and that because of this, the court
would appoint her an attorney if she could not afford to hire one. Precious indicated that she was
not able to hire an attorney at the time, so the court provided her a financial affidavit to fill out.
The hearing then concluded. On September 27, after reviewing Preciousā completed financial
affidavit, the court overruled her request for court-appointed counsel.
A pretrial hearing was held on October 13, 2021. Both parties appeared at this hearing
without counsel. At this hearing, Precious informed the court that she and Justin had not been able
to resolve their issues outside of court. An evidentiary hearing was then scheduled for November
5. The court explained to both parties that the evidentiary hearing was their opportunity to present
evidence regarding the show cause order.
At the November 5, 2021, evidentiary hearing, both parties again appeared without
counsel. The first issue addressed at the hearing was Justinās inability to retrieve the personal
property he was awarded in the divorce decree from Precious. In support of his contempt claim,
Justin offered into evidence several emails between himself and Precious detailing their
negotiations regarding Justinās personal belongings and the sale of the house. Precious offered into
evidence additional emails between her and Justin.
Taken together, the email exchanges reveal that Justin initially emailed Precious about
picking up his belongings on January 27, 2020. Precious responded that Justin had missed the
deadline of October 23, 2019, established by the court in the decree and declined to allow him to
pick up his things on January 27, 2020. Approximately a year later, in January 2021, Justin again
emailed Precious about when he could pick up his personal property.
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At the evidentiary hearing on November 5, 2021, Justin explained that he still had not been
offered an opportunity to retrieve his belongings. Precious explained that because Justin did not
contact her by October 23, 2019, she threw most of the items away. She had interpreted the divorce
decree to mean that it was Justinās responsibility to pick up his belongings by the October 23
deadline. To the contrary, Justin explained that he did not even receive a copy of the divorce decree
until October 24. He interpreted that portion of the decree to mean that Precious had to have the
items ready for him by that date. Justin requested the court to set a date for him to retrieve his
belongings from Precious.
The second issue addressed at the evidentiary hearing was the sale of the marital home.
Precious informed the court that she was unable to refinance the house in her name only. In the
email exchanges between Justin and Precious, the two disagreed about whether selling the house
at that time would result in much value. Precious argued that selling the house would result in a
loss, while Justin argued that the homeās value had increased since the date of purchase. At the
evidentiary hearing, Justin offered into evidence a comparative market analysis of the house
completed by a local realty company. Precious offered into evidence a market area sales report
from the Sarpy County Assessor.
Other evidence adduced at the hearing revealed that the mortgage on the home was not
paid off. In addition to the mortgage, there was a home equity line of credit (HELOC) that had a
balance of $17,000 as of the time of the divorce. When Justin moved out of the home in August
2018, Precious began making both the house payment and the HELOC payment. According to
Precious, these payments have put a financial strain on her, such that she is not opposed to selling
the house. However, Precious said she had been unable to sell the house because she and Justin
have disagreed about each otherās equity in the home based on their relative contributions. Precious
did not want Justin to receive a windfall from a sale due to the current inflated housing prices since
she had been the only one contributing to the home since 2018. Justin countered that he did not
currently contribute to the house payments because he was not receiving any benefit from living
there. He also testified that Precious received the entirety of the proceeds from the HELOC. As
such, it had not provided him any benefit. After the partiesā concluded their presentation of
evidence, the court took the matter under advisement.
In an order dated December 8, 2021, the court found that it was clear from the evidence
presented that Precious failed to refinance the marital home or list the home for sale as was ordered
in the divorce decree. In addition, the court found that Justin had never received the personal
property awarded to him in the divorce decree. The court concluded that Preciousā failure to list
the marital home for sale constituted willful disobedience of the decree. The court interpreted the
decree to have required Precious to prepare Justinās personal items for pick up by October 23,
2019. Having found Justin to be the more credible witness, the court held that because Justinās
attempts to retrieve his items were continuously blocked by Precious, she willfully disobeyed the
order to return his possessions to him.
As a result of her willful disobedience, the district court found Precious to be in contempt
and sentenced her to 30 days in the Sarpy County Jail. However the court devised a purge plan
whereby Precious could avoid the imposition of the sentence. Under the purge plan, Precious was
required to (1) list the home for sale by December 31, 2021, and (2) return Justinās items of
personal property by December 31, 2021. In the alternative, should Precious no longer have the
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items, she was required to pay Justin $1,000 by January 31, 2022. The court then found that upon
the receipt of an affidavit from Justin that Precious had complied with the purge plan, the court
would vacate the 30-day sanction and the compliance hearing would be cancelled.
As a part of its order, the court instructed Justin and Precious to equally divide any proceeds
realized from the sale of the marital home, less closing costs. However, if there was a deficit in the
sale of the home, the debt was to be Preciousā sole obligation. Precious was ordered to appear
before the district court on February 4, 2022, for a status hearing regarding her compliance with
the purge plan.
Precious appeals from the district courtās order here.
ASSIGNMENTS OF ERROR
Consolidated and restated, Precious assigns as error (1) the courtās denial of appointed
counsel for the contempt proceedings, (2) that the court lacked jurisdiction to hear the show cause
order, (3) that there was insufficient evidence to find her in willful contempt of the decree of
dissolution, and (4) that the sanction imposed was punitive.
STANDARD OF REVIEW
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which the trial courtās
(1) resolution of the issues of law is reviewed de novo, (2) factual findings are reviewed for clear
error, and (3) determinations of whether a party is in contempt and the sanction to be imposed is
reviewed for an abuse of discretion. Becher v. Becher, 311 Neb. 1,970 N.W.2d 472
(2022).
ANALYSIS
Denial of Appointed Counsel.
We begin with Preciousā assertion that the district court erred in denying her request for
appointed counsel. Although Precious has assigned this issue as error, in the analysis section of
her brief, Precious has failed to provide a coherent analytical argument supporting her assertion.
Preciousā only argument in support of her contention is that āshe filed two separate Financial
Affidavits showing that her expenses were at or less than her income and the Court granted her
request to proceed with appeal in forma pauperis.ā Brief for appellant at 36. In order to be
considered by an appellate court, the party asserting an alleged error must both specifically assign
and specifically argue it in the partyās initial brief. Dycus v. Dycus, 307 Neb. 426,949 N.W.2d 357
(2020). Where an appellantās brief contains only conclusory assertions unsupported by a coherent analytical argument, the appellant fails to satisfy this requirement.Id.
Because Precious has not
adequately argued her assertion regarding the district courtās failure to appoint her with counsel
for the contempt proceedings, we do not consider this assignment of error.
Jurisdiction.
In her brief on appeal, Precious also alleges that the district court did not have jurisdiction
to hear the contempt action because Precious was not personally served with the application to
show cause filed by Justin. Generally, under Nebraska law the plaintiff is required to serve a
summons upon the defendant in a civil proceeding. See Burns v. Burns, 293 Neb. 633, 879 N.W.2d
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375 (2016). However, for the purposes of personal jurisdiction, the voluntary appearance of the
party is equivalent to receiving service of process. Id.A partyās participation in the proceedings on any issue other than defenses of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process, waives all such issues.Id.
Here, Precious arrived at the initial hearing on September 24, 2021. She informed the court
that she had not been personally served, but instead had been informed of the hearing through an
email notification. The district court asked Precious whether she was āagreeing to come in on this
application to show cause.ā Precious responded affirmatively stating that the āmatter need[ed] to
be settled.ā By availing herself of the court, Precious waived any issues with service or personal
jurisdiction of the court. Therefore, Precious cannot now challenge whether the court had personal
jurisdiction over her.
Sufficiency of Evidence.
Precious alleges generally that the evidence presented at the evidentiary hearing was
insufficient to support a finding that she was in willful contempt of the divorce decree. In support
of her assertion that she should not have been found in willful contempt, Precious makes two
distinct arguments. First, Precious argues that the court incorrectly interpreted the divorce decree,
and second, argues that the court erred in finding sufficient evidence to support a finding of willful
contempt.
Precious challenges the district courtās interpretation of the provisions of the divorce decree
regarding the sale of the home and the retrieval of Justinās personal belongings. A decree is a
judgment, and once a decree for dissolution becomes final, its meaning is determined as a matter
of law from the four corners of the decree itself. Becher v. Becher, 311 Neb. 1,970 N.W.2d 472
(2022). The partiesā subjective intentions and interpretations of the language or what the court entering the decree intended are irrelevant. Gomez v. Gomez,303 Neb. 539
,930 N.W.2d 515
(2019). Because the interpretation of a provision within a divorce decree is a question of law, we reach a conclusion independent of the determination reached by the district court. Becher v.Becher, supra.
After our review of the language of the decree, we conclude that the district court
did not err in finding that the decree clearly instructed Precious to sell the home if she could not
refinance it, and that the decree required Precious to return Justinās items to him.
Precious argues that the provision of the decree requiring the sale of the home was not clear
because it did not specify that she was personally responsible for the sale of the home. The
language of the divorce decree states that āif [Precious] is unable to refinance the property in her
name only, the residence shall be sold within 90 days thereafter.ā This comes directly after the
order awarding her the residence. Reading these two provisions together, it is clear that the decree
required Precious, as the person in sole possession of the house, to either refinance the home in
her name only, or to facilitate the sale of the home. The district court did not err in finding this
provision to be unambiguous.
Precious next argues that the court erred in its interpretation of the divorce decreeās
provision stating that ā[Precious] shall prepare [Justinās] clothing and the lawnmower for pick up
by [Justin] at 6:00 p.m. on Wednesday, October 23, 2019.ā The district court interpreted this
provision to instruct Precious to have Justinās items prepared for him by the deadline set. Precious
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asserts that the provision was a deadline for Justin to retrieve his belongings and that since he did
not pick up the items prior to that date, she is relieved of this obligation. We disagree.
Examining the language of the divorce decree as a whole, it is clear that the purpose of the
order was for Justin to regain possession of his lawnmower, clothing, and personal effects. These
items were left at the marital home, which was awarded to Precious. The divorce decree directed
Precious to prepare Justinās items for pick up. The decree then set a pickup date of October 23,
2019, at 6 p.m. There is nothing in the decree mandating that the items must be picked up by Justin
at that time or be lost to him forever. We, therefore, find that the divorce decree required that
Precious have Justinās items prepared for pick up by the October 23 date, and that Justin be
provided with an opportunity to pick them up.
Having found that the district court did not err in its interpretation of the divorce decree,
we now turn to whether Justin presented sufficient evidence to find that Precious was in willful
and contumacious contempt of the decree. All elements of contempt must be proved by the
complainant by clear and convincing evidence. Krejci v. Krejci, 304 Neb. 302,934 N.W.2d 179
(2019). Willful disobedience is an essential element of contempt.Id.
āWillfulā means the violation was committed intentionally, with knowledge that the act violated the court order.Id.
At the evidentiary hearing, Precious essentially admitted that she had not even attempted
to sell the home after she was unable to refinance it. Justin presented evidence that he had contacted
her about preparing the home for sale, but Precious refused to do so out of fear that the house
would be sold at a loss. Precious explained that she too wanted to sell the house but could not
because she and Justin disagreed on the distribution of any proceeds. The decree is clear on this
issue. Regardless of whether the house is sold at a profit or a loss, the equity or loss was to be
divided equally between the parties. Therefore, disagreement about the equity from the sale
provides no excuse for Precious to disregard the order to sell the home. The district court did not
abuse its discretion in finding that Precious was in willful and contumacious contempt by refusing
to sell the home as ordered by the divorce decree.
Concerning Justinās belongings, other emails offered into evidence by Justin showed that
he first attempted to pick up his belongings in January 2020. Justin contacted Precious regarding
his items several times, but she refused to provide him a time for retrieval, claiming he had missed
his deadline. At the evidentiary hearing, he informed the court that he still was not in possession
of any of the items he had been awarded in the divorce decree. Precious admitted that she had
disposed of all of the items except the lawnmower. Precious did not provide Justin the opportunity
to regain possession of the property he was awarded in the divorce decree and then deliberately
threw out those possessions. The district court did not abuse its discretion in finding Precious to
be in willful contempt.
Sanction and Purge Plan.
Finally, Precious argues that the courtās sanction of 30 days in jail is punitive because she
does not have the ability to complete the purge plan designed by the court.
Civil contempt proceedings are instituted to preserve and enforce the rights of private
parties to a suit when a party fails to comply with a court order made for the benefit of the opposing
party. Sickler v. Sickler, 293 Neb. 521,878 N.W.2d 549
(2016). Contempt proceedings may both
compel obedience to orders and administer the remedies to which a court has found the parties to
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be entitled. Id.A civil sanction is coercive and remedial; the contemnors ācarry the keys of their jail cells in their own pocketsā because the sentence is conditioned upon continued noncompliance and is subject to mitigation through compliance.Id. at 541
,878 N.W.2d at 565
(internal quotations omitted). In contrast, a criminal sanction is punitive because the sentence is determinate and unconditional. Sickler v.Sickler, supra.
The ability to comply with a contempt order is the dividing line between civil and criminal
contempt. Id.A present inability to comply with a contempt order is a defense to incarceration, not a finding of contempt.Id.
The contemnor has the burden of asserting and proving an inability to comply with the contempt order to avoid incarceration or to purge himself or herself of contempt by showing attempts to exhaust all resources.Id.
Therefore, the contemnor must be afforded the opportunity, before being incarcerated, to demonstrate an inability to comply.Id.
Precious alleges she cannot comply with the purge plan ordered by the court because she
cannot sell the house without the consent of Justin and she has no control over whether the house
will sell by the deadline. However, Precious provided no evidence that she has made any attempts
to sell the house that were thwarted by Justin. Her contention that Justin would withhold consent
for the sale of the house is speculative at this juncture and not supported by the record. It was Justin
who asked the court to compel Precious to sell the house. We cannot say at this point in time that
he will block Preciousā attempts to comply with the courtās order. This argument is without merit.
Preciousā argument that she cannot complete the purge plan because she has no control
over whether the house can actually be sold by the deadline has more validity. At a subsequent
hearing, the court could find this to be a defense to incarceration, but it is not a defense to a finding
of contempt, nor is it an improper requirement as part of the purge plan. A contemnor must be
afforded a chance to prove a present inability to comply with a purge plan before being
incarcerated. See Sickler v. Sickler, supra. The district court allowed Precious this opportunity.
The court ordered Precious to appear on February 4, 2022, āfor a status hearing on her compliance
with the purge plan.ā It is at this hearing that Precious would be afforded the opportunity to present
evidence as to her inability to comply with the purge plan as ordered, whether that be due to market
conditions, Justinās interference, or any other cause outside of her control. Because Precious still
carries the keys of her own jail cell in her pocket, the purge plan is not punitive. We find no merit
to this argument.
CONCLUSION
For the reasons stated above, we affirm the decision of the district court in finding Precious
in willful contempt.
AFFIRMED.
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