In re Estate of Cushing

I n re estate of VIrgInIa L ee C ushIng , deCeased.
L awrenCe C ushIng , Jr ., P ersonaL rePresentatIVe of the
estate of VIrgInIa L ee C ushIng , deCeased, aPPeLLant,
V. nebraska dePartment of heaLth and
human serVICes , aPPeLLee .
810 N.W.2d 741
Filed March 23, 2012. 	No. S-11-614.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law.
3. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
4. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
5. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
Appeal from the County Court for Douglas County: C raIg
Q. mCdermott, Judge. Affirmed as modified.
Hugh 	I. Abrahamson, 	of Abrahamson 	Law 	Office, 	for
appellant.
Ronald L. Sanchez, Special Assistant Attorney General, and
Matthew G. Dunning for appellee.
heaVICan, C.J., wrIght, C onnoLLy, stePhan, mCC ormaCk ,
and mILLer-L erman, JJ.
stePhan, J.
The Nebraska Department of Health and Human Services
(DHHS) provided Medicaid benefits for Virginia Lee Cushing
IN Re eSTATe OF CuSHING 	571
Cite as 283 Neb. 571
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

(Cushing) during the final years of her life. After her death,
DHHS filed a claim against Cushing’s estate for recovery of
the benefits pursuant to Neb. Rev. Stat. § 68-919 (Reissue
2009). The personal representative of the estate appeals from
an order of the county court for Douglas County allowing the
claim and awarding interest. The principal issues are whether
DHHS timely presented its claim and, if so, whether it was
proved as a matter of law. We conclude the claim was both
timely presented and proved as a matter of law. But we modify
the award of interest.
BACKGROuND
The claim which is the subject of this appeal was made pur-
suant to Nebraska’s Medicaid estate recovery statute, § 68-919,
which provides in relevant part:
(1) The recipient of medical assistance under the medi-
cal assistance program shall be indebted to [DHHS] for
the total amount paid for medical assistance on behalf of
the recipient if:
(a) The recipient was fifty-five years of age or older at
the time the medical assistance was provided . . . .
. . . .
(2) The debt accruing under subsection (1) of this sec-
tion arises during the life of the recipient but shall be held
in abeyance until the death of the recipient. Any such debt
to [DHHS] that exists when the recipient dies shall be
recovered only after the death of the recipient’s spouse,
if any, and only when the recipient is not survived by a
child who either is under twenty-one years of age or is
blind or totally and permanently disabled as defined by
the Supplemental Security Income criteria.
The relevant facts are undisputed. DHHS administers the
State of Nebraska’s medical assistance program, commonly
known as Medicaid. From April 6, 1997, to May 5, 2010, DHHS
paid $78,594.45 on behalf of Cushing for drugs, medical sup-
plies, and medical services covered by Medicaid. Cushing was
over the age of 55 during this period. She died testate on May
9, 2010, and Lawrence J. Cushing, Jr., was appointed as the
personal representative of the estate. Cushing was not survived
572 	283 NeBRASKA RepORTS

by a spouse, a child who was under the age of 21, or a child
who was blind or totally and permanently disabled.
Beginning on July 2, 2010, notice of the informal probate
of Cushing’s will was published in an Omaha newspaper. The
notice stated that creditors of the estate “must file their claims
with [the county court for Douglas County] on or before
September 2, 2010 or be forever barred.” (emphasis omitted.)
proof of publication of this notice was filed with the county
court on July 16.
On September 14, 2010, DHHS filed a demand for notice
with the county court, indicating it had a Medicaid estate recov-
ery claim pursuant to § 68-919. The attorney for the estate sent
DHHS the published notice to creditors on September 24.
On January 18, 2011, DHHS filed a claim against the
estate, seeking a payment of $78,594.15 pursuant to § 68-919.
The personal representative filed a notice of disallowance of
the claim on March 10. DHHS then filed a petition for allow-
ance of the claim, alleging it paid $78,594.15 for medical
assistance received by Cushing when she was 55 years of age
or older.
DHHS moved for summary judgment on the petition and
sought interest pursuant to Neb. Rev. Stat. § 30-2488(e)
(Reissue 2008). DHHS asserted that its claim against the estate
was timely filed because it was not given notice in accordance
with Neb. Rev. Stat. §§ 25-520.01 and 30-2483 (Reissue 2008),
which meant that under Neb. Rev. Stat. § 30-2485(a)(2) (Cum.
Supp. 2010), it had 3 years from Cushing’s death to file its
claim. The county court granted DHHS’ motion for sum-
mary judgment and entered judgment against the estate in the
amount of $78,594.15, with interest at a rate of 2.188 percent
per annum, from and after November 1, 2010. The personal
representative filed a timely notice of appeal.
ASSIGNMeNTS OF eRROR
The personal representative assigns, restated, that the county
court erred in (1) finding DHHS timely filed its claim against
the estate, (2) granting summary judgment to DHHS on its
claim against the estate, and (3) taxing and calculating interest
and court costs against the estate.
IN Re eSTATe OF CuSHING 	573
Cite as 283 Neb. 571

STANDARD OF ReVIeW
[1] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.1
[2] An appellate court will affirm a lower court’s granting
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.2
ANALYSIS
tImeLIness of CLaIm
In evaluating the personal representative’s first assignment
of error, we must apply § 30-2485, which sets time limitations
for filing claims against an estate. The statute provides in rel-
evant part:
(a) All claims against a decedent’s estate which arose
before the death of the decedent, including claims of
the state and any subdivision thereof, whether due or
to become due, absolute or contingent, liquidated or
unliquidated, founded on contract, tort, or other legal
basis, if not barred earlier by other statute of limita-
tions, are barred against the estate . . . unless presented
as follows:
(1) Within two months after the date of the first publi-
cation of notice to creditors if notice is given in compli-
ance with sections 25-520.01 and 30-2483 . . . . If any
creditor has a claim against a decedent’s estate which
arose before the death of the decedent and which was not
presented within the time allowed by this subdivision,
including any creditor who did not receive notice, such
creditor may apply to the court within sixty days after the
expiration date provided in this subdivision for additional
1 In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
2 Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011).
574 	283 NeBRASKA RepORTS

time and the court, upon good cause shown, may allow
further time not to exceed thirty days;
(2) Within three years after the decedent’s death if
notice to creditors has not been given in compliance with
sections 25-520.01 and 30-2483.
(b) All claims . . . against a decedent’s estate which
arise at or after the death of the decedent, including
claims of the state and any subdivision thereof, whether
due or to become due, absolute or contingent, liquidated
or unliquidated, founded on contract, tort, or other legal
basis, are barred against the estate . . . unless presented
as follows:
(1) A claim based on a contract with the personal rep-
resentative, within four months after performance by the
personal representative is due;
(2) Any other claim, within four months after it arises.
Our first task is to determine when the claim in question
arose. If it arose before Cushing’s death, the time limitations
set forth in § 30-2485(a) apply. If it arose at or after Cushing’s
death, the time limitations set forth in § 30-2485(b) apply.
Relying upon In re Estate of Tvrz,3 the personal representa-
tive argues that the claim arose after Cushing’s death. The
Medicaid reimbursement statute which we construed in In re
Estate of Tvrz in part provided that “[t]he estate of a dece-
dent who has received medical assistance benefits . . . shall
be indebted” to DHHS.4 In rejecting the contention in In re
Estate of Tvrz that the debt arose during the lifetime of the
recipient, we noted the absence of language in the statute to
support the contention. To the contrary, we concluded that the
language of the statute “focuses on one point in time, i.e., the
death of the recipient, and requires a determination of whether
the recipient’s estate is obligated to reimburse DHHS as of
that point.”5
3 In re Estate of Tvrz, 260 Neb. 991, 620 N.W.2d 757 (2001).
4 Neb. Rev. Stat. § 68-1036.02(1) (Reissue 1996). See In re Estate of Tvrz,
supra note 3.
5 In re Estate of Tvrz, supra note 3, 260 Neb. at 999, 620 N.W.2d at 762.
IN Re eSTATe OF CuSHING 	575
Cite as 283 Neb. 571

In response to our decision in In re Estate of Tvrz,6 the
Legislature amended the Medicaid estate recovery statute,7
which is now codified in § 68-919. As noted, the statute now
provides that the debt is owed by the “recipient”8 of medical
assistance benefits and “arises during the life of the recipient
but shall be held in abeyance until the death of the recipient.”9
Thus, In re Estate of Tvrz is no longer authoritative on when
DHHS’ claim arises. Instead, the statute now clearly states
that indebtedness to DHHS resulting from its payment of
medical assistance benefits arises during the life of the recip-
ient. Accordingly, DHHS’ claim arose before Cushing’s death
and is therefore subject to the time limitations set forth in
§ 30-2485(a).
Whether the claim is subject to the 2-month limitations
period set forth in § 30-2485(a)(1) or the 3-year period set
forth in § 30-2485(a)(2) depends upon whether DHHS was
given notice “in compliance with sections 25-520.01 and
30-2483.”10 Section 30-2483 requires “the clerk of the court
upon the appointment of a personal representative [to] publish
a notice once a week for three successive weeks in a news-
paper of general circulation.” The notice must “announc[e] the
appointment and the address of the personal representative, and
notify[] creditors of the estate to present their claims within
two months after the date of the first publication of the notice
or be forever barred.”11 Moreover,
[t]he party instituting or maintaining the proceeding or
his or her attorney is required to mail the published
notice and give proof thereof in accordance with section
25-520.01. If the decedent was fifty-five years of age or
older or resided in a medical institution as defined in
6 See Floor Debate, 97th Leg., 1st Sess. 1374 (Feb. 20, 2001).
7 2001 Neb. Laws, L.B. 257, § 1.
8 § 68-919(1).
9 § 68-919(2).
10 § 30-2485(a)(1). Accord § 30-2485(a)(2).
11 § 30-2483.
576 	283 NeBRASKA RepORTS

subsection (1) of section 68-919, the notice shall also be
mailed to [DHHS].12
Section 25-520.01 in relevant part provides:
In any action or proceeding . . . where a notice by pub-
lication is given as authorized by law, a party instituting
or maintaining the action or proceeding with respect to
notice or his attorney shall within five days after the first
publication of notice send by united States mail a copy of
such published notice to each and every party appearing
to have a direct legal interest in such action or proceeding
whose name and post office address are known to him.
proof by affidavit of the mailing of such notice shall be
made by the party or his attorney and shall be filed with
the officer with whom filings are required to be made in
such action or proceeding within ten days after mailing of
such notice.
We held in In re Estate of Emery13 that a creditor who did not
receive mailed notice pursuant to §§ 25-520.01 and 30-2483
was entitled to the 3-year period provided by § 30-2485(a)(2),
notwithstanding the fact that the creditor had not sought the
60-day extension provided for in § 30-2485(a)(1). Similarly,
in Baye v. Airlite Plastics Co.,14 we held that creditors who did
not receive the notice required by §§ 25-520.01 and 30-2483
had 3 years from the date of the decedent’s death to file their
claims against the estate.
Here, the personal representative argues he gave the requi-
site notice to DHHS on September 24, 2010. But by that date,
the deadline for creditors to file claims against the estate had
passed. We read § 30-2483 to require that the notice to DHHS
comply with § 25-520.01, which requires mailing within 5
days of first publication, so that DHHS will have the same
opportunity as other creditors to file a timely claim against the
estate. Because the notice to DHHS was not mailed within 5
days of July 2, 2010, the date the notice to creditors was first
12 Id.
13 In re Estate of Emery, 258 Neb. 789, 606 N.W.2d 750 (2000).
14 Baye v. Airlite Plastics Co., 260 Neb. 385, 618 N.W.2d 145 (2000).
IN Re eSTATe OF CuSHING 	577
Cite as 283 Neb. 571

published, the personal representative failed to comply with
§§ 25-520.01 and 30-2483 and the 3-year limitations period
of § 30-2485(a)(2) applies. DHHS’ filing date of January 18,
2011, was well within this time period. The personal represent-
ative’s first assignment of error is without merit.
summary Judgment
[3] In his second assigned error, the personal representa-
tive contends that the county court erred in granting summary
judgment in favor of DHHS. Here, DHHS moved for summary
judgment. As the party moving for summary judgment, DHHS
had the burden to show that no genuine issue of material fact
existed and to produce sufficient evidence to demonstrate that
it was entitled to judgment as a matter of law.15
[4] DHHS offered evidence that Cushing was 55 years of
age or older when the medical assistance benefits were pro-
vided. This established a prima facie showing that Cushing
was indebted to DHHS pursuant to § 68-919(1)(a). DHHS
also offered evidence that Cushing was not survived by a
spouse, a child under the age of 21, or a child who was
blind or totally and permanently disabled. This established that
the debt became recoverable after Cushing’s death, pursuant
to § 68-919(2). Finally, DHHS offered its payment records
authenticated in the manner required by § 68-919(4), thereby
establishing the total amount paid on Cushing’s behalf. Thus,
DHHS presented evidence which, if uncontroverted, would
entitle it to judgment for the amount of the indebtedness as a
matter of law. After the movant for summary judgment makes
a prima facie case by producing enough evidence to demon-
strate that the movant is entitled to judgment if the evidence
was uncontroverted at trial, the burden to produce evidence
showing the existence of a material issue of fact that prevents
judgment as a matter of law shifts to the party opposing the
motion.16 Here, the personal representative offered no evidence
showing the existence of a genuine issue of material fact as to
15 See, Dresser v. Union Pacific RR. Co., 282 Neb. 537, 809 N.W.2d 713
(2011); Tolbert v. Jamison, 281 Neb. 206, 794 N.W.2d 877 (2011).
16 Id.
578 	283 NeBRASKA RepORTS

any of the essential elements of DHHS’ claim. Accordingly, the
county court did not err in granting the motion for summary
judgment and the personal representative’s second assigned
error is without merit.
I nterest
[5] Finally, the personal representative assigns error to the
county court’s award of costs and prejudgment interest to
DHHS. We address only that portion of this assignment deal-
ing with interest, because the personal representative makes
no argument with respect to costs. To be considered by this
court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting
the error.17
In its July 1, 2011, order granting summary judgment to
DHHS, the county court awarded interest at an annual rate
of 2.188 percent, from and after November 1, 2010. The per-
sonal representative asserts this award was improper based on
§ 30-2488(e). That subsection provides:
unless otherwise provided in any final judgment in any
court entered against the personal representative, allowed
claims bear interest at the legal rate for the period com-
mencing sixty days after the time for original presentation
of the claim has expired unless based on a contract mak-
ing a provision for interest, in which case they bear inter-
est in accordance with that provision.
under § 68-919(3), the statutory debt owed by a Medicaid
recipient to DHHS “shall not include interest.” Thus, any award
of interest must be based upon § 30-2488(e), which we have
not previously interpreted. The North Dakota Supreme Court
interpreted a nearly identical statute in In re Estate of Kiesow.18
That case addressed whether interest could be awarded on a
claim for reimbursement for medical assistance benefits under
a statute19 which provided:
17 Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
18 In re Estate of Kiesow, 615 N.W.2d 538 (N.D. 2000).
19 N.D. Cent. Code § 30.1-19-06(5) (2010).
IN Re eSTATe OF CuSHING 	579
Cite as 283 Neb. 571

unless otherwise provided in any judgment in another
court entered against the personal representative, allowed
claims bear interest at the legal rate for the period com-
mencing sixty days after the time for original presentation
of the claim has expired unless based on a contract mak-
ing a provision for interest, in which case allowed claims
bear interest in accordance with that provision.
The court looked to North Dakota’s nonclaim statute, which
set forth time limitations for filing claims against an estate, to
determine when the time for original presentation of the claim
had expired. North Dakota’s statute, like § 30-2485, provided
for a 3-year period of limitations for claims against a decedent’s
estate which arose before the death of the decedent, if notice to
creditors was not published and mailed. The Supreme Court of
North Dakota determined that the time for original presentation
of the claim was 3 years, because no notice to creditors was
mailed or published.
The facts in this case are slightly different, in that notice
to creditors was published and mailed to some creditors,
not including DHHS. But we conclude that the language in
§ 30-2488(e) which fixes the date at which interest begins to
run as “sixty days after the time for original presentation of the
claim” is specific to the claim of the creditor seeking interest,
in this case DHHS. pursuant to our application of § 30-2485
above, the time for original presentation of DHHS’ claim was
3 years from Cushing’s death. The 3-year period would extend
to May 9, 2013, and no interest could begin to accrue under
§ 30-2488(e) until 60 days after that date, which is July 8. We
are not persuaded by the argument of DHHS that the county
court had discretion to vary the date on which interest would
begin to accrue under the facts presented here.
CONCLuSION
DHHS’ claim for medical assistance benefits provided to
Cushing arose before her death and was enforceable against
her estate following her death. DHHS timely filed its claim
and made a sufficient showing, which was uncontroverted
by the personal representative, that it was entitled to judg-
ment as a matter of law. However, interest does not begin to
580 	283 NeBRASKA RepORTS

accrue on the judgment “from and after November 1, 2010,”
as ordered by the county court, but, rather, from and after July
8, 2013. We modify the judgment to that extent and affirm
as modified.
affIrmed as modIfIed.
IN Re INTeReST OF KARLIe D. 	581
Cite as 283 Neb. 581
I n re I nterest of karLIe d., a ChILd
under 18 years of age .
state of nebraska , aPPeLLant, V. gary d., aPPeLLee ,
and martha d., InterVenor-aPPeLLee .
811 N.W.2d 214
Filed March 23, 2012. 	No. S-11-616.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed
de novo on the record, and an appellate court is required to reach a conclusion
independent of the juvenile court’s findings. However, when the evidence is in
conflict, an appellate court may consider and give weight to the fact that the
trial court observed the witnesses and accepted one version of the facts over
the other.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In juvenile cases, as else-
where, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. Juvenile Courts: Adoption: Child Custody. A juvenile court, except where
an adjudicated child has been legally adopted, may always order a change
in the juvenile’s custody or care when the change is in the best interests of
the juvenile.
4. Final Orders: Appeal and Error. under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders which may be reviewed on appeal are (1)
an order which affects a substantial right and which determines the action and
prevents a judgment, (2) an order affecting a substantial right made during a spe-
cial proceeding, and (3) an order affecting a substantial right made on summary
application in an action after judgment is rendered.
5. Final Orders: Words and Phrases. A substantial right is an essential legal right,
not a mere technical 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 the appellant prior to the order from which the appeal
is taken.
7. Juvenile Courts: Final Orders: Constitutional Law: Parent and Child. The
substantial right of a parent in juvenile proceedings is a parent’s fundamental,
constitutional right to raise his or her child.