Fox v. Whitbeck

M ary Fox , appellee , v. rayMond Whitbeck , appellee ,
and Sherry l. MceWin, ForMerly knoWn aS
Sherry l. Whitbeck , intervenor-appellant.
783 N.W.2d 774
Filed June 18, 2010. 	No. S-09-923.
1. Appeal and Error. An appellate court resolves questions of law and issues of
statutory interpretation independently of the lower court’s conclusion.
2. Judicial Sales. It is the general rule that confirmation of judicial sales rests
largely within the discretion of the trial court, and will not be reviewed except for
manifest abuse of such discretion.
3. Child Support: Notice. An income withholding notice issued by the Nebraska
Department of Health and Human Services pursuant to the Income Withholding
for Child Support Act is not an “execution” within the meaning of Neb. Rev. Stat.
§ 42-371(5) (Reissue 2008).
4. Liens: Child Support. Child support judgments do not become dormant by lapse
of time, and the fact that a child support judgment ceases to be a lien by operation
of Neb. Rev. Stat. § 42-371(5) (Reissue 2008) does not extinguish the judgment
itself or cause it to become dormant.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J. M ichael coFFey, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
John P. Weis, of Sodoro, Daly & Sodoro, P.C., for intervenor-
appellant.
Ralph E. Peppard for appellee Mary Fox.
heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	Stephan,
MccorMack , and M iller-lerMan, JJ.
Stephan, J.
Sherry L. McEwin, formerly known as Sherry Lee Whitbeck,
appeals from an order of the Douglas County District Court
confirming a sheriff’s sale of real property owned by her former
of all the issues raised in the proceeding, I believe it is a final,
appealable order. So I dissent from that part of the majority
opinion concluding that Rollins could not appeal from the
modification order.
Fox v. WHItbECk 	75
Cite as 280 Neb. 75
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

spouse. the district court determined that McEwin’s child sup-
port lien on the property had lapsed pursuant to Neb. Rev. Stat.
§ 42-371(5) (Reissue 2008). We affirm the determination of the
district court regarding the lien, but reverse the order confirm-
ing the sale and remand for further proceedings on McEwin’s
objections to confirmation which were not dependent upon the
lapsed lien.
bACkGRoUND
on April 20, 1995, the Douglas County District Court
dissolved the marriage of McEwin and Raymond Whitbeck.
Whitbeck was ordered to pay $484 per month in child support
for the parties’ two children.
on February 29, 1996, Mary Fox obtained a decree of pater-
nity entered in the Douglas County district court which deter-
mined that Whitbeck was the father of a child born to Fox in
october 1993 and required Whitbeck to pay $368.50 per month
in child support. on November 7, 2008, Fox filed a motion in
the district court seeking leave to execute on real property for-
merly owned by Whitbeck in order to enforce the child support
lien created by the 1996 child support judgment. the district
court sustained the motion on the same day and ordered the
sheriff to execute on the property.
on December 23, 2008, McEwin filed a motion to intervene
and sought a hearing on the disposition of the proceedings of
the execution and sale. McEwin claimed that she had a con-
tinuing child support lien on the property based upon the 1995
decree. the district court granted the motion and ordered that
a hearing to determine the priority of McEwin’s child support
lien would be held at a later date.
the sheriff’s sale occurred on December 31, 2008. Fox
submitted the high bid of $21,500. the court commenced
a hearing on February 20, 2009, with respect to McEwin’s
claimed lien. the evidence received at the hearing included a
copy of McEwin’s 1995 decree and a payment history report
showing unpaid child support due McEwin in the amount of
$14,370.82. the report reflected nine instances between 2002
and 2005 when unspecified collection efforts had been under-
taken. McEwin’s counsel stated that McEwin believed these
collection efforts were by means of wage garnishment, but the
76 	280 NEbRASkA REPoRtS

court noted that there was no evidence to support this claim.
the hearing was continued to permit McEwin’s counsel addi-
tional time to gather evidence on this point.
on March 20, 2009, before the hearing resumed, McEwin
filed a motion for continuance and an objection to confirma-
tion of sale. In these filings, she alleged that there were irregu-
larities in the sheriff’s sale that resulted in a high bid which
was significantly below the fair market value of the property.
McEwin argued that the sale should not be confirmed in order
to protect both her child support lien and that of Fox.
the continued hearing resumed on April 1, 2009. McEwin’s
counsel offered, and the court received, six documents, each
entitled “order/Notice to Withhold Income for Child Support,”
which were filed in the district court for Douglas County on
various dates between August 6, 2001, and october 21, 2003.
For brevity, we shall refer to these documents as income
withholding notices. Fox offered, and the court received, evi-
dence of unpaid child support due to her in the amount
of $62,702.44.
In its August 12, 2009, order, the district court overruled
McEwin’s objections and confirmed the sale. the court noted
that neither the evidence nor its records reflected any wage
garnishment or execution initiated by McEwin to enforce her
child support judgment, and the court further concluded that
the income withholding notices did not constitute executions
within the meaning of § 42-371(5). therefore, the court deter-
mined that the lien arising from McEwin’s 1995 judgment
had lapsed and confirmed the judicial sale of Whitbeck’s real
property to Fox.
McEwin perfected this timely appeal, which we moved to
our docket pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.1
ASSIGNMENtS oF ERRoR
McEwin assigns, consolidated and restated, that the district
court erred in (1) determining that the income withholding
1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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Cite as 280 Neb. 75

notices did not constitute executions within the meaning of
§ 42-371(5) and (2) confirming the sale without conducting a
hearing on her objections unrelated to the lien.
StANDARD oF REVIEW
[1] An appellate court resolves questions of law and issues
of statutory interpretation independently of the lower court’s
conclusion.2
[2] It is the general rule that confirmation of judicial sales
rests largely within the discretion of the trial court, and will not
be reviewed except for manifest abuse of such discretion.3
ANALYSIS
validity oF lien
Nebraska statutory law provides various means for enforcing
a child support judgment. one is through imposition of a lien
on real property pursuant to § 42-371, which provides:
(1) All judgments and orders for payment of money
shall be liens, as in other actions, upon real property and
any personal property registered with any county office
and may be enforced or collected by execution and the
means authorized for collection of money judgments;
. . . .
(5) Support order judgments shall cease to be liens
on real or registered personal property ten years from
the date (a) the youngest child becomes of age or dies
or (b) the most recent execution was issued to collect
the judgment, whichever is later, and such lien shall not
be reinstated.
In this case, McEwin’s youngest child reached the age of
majority in May 1998. thus, her child support judgment would
have ceased to be a lien on the real property prior to the
2 See, Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007); Japp v. Papio-Missouri River NRD, 273 Neb. 779, 733
N.W.2d 551 (2007).
3 Deutsche Bank Nat. Trust Co. v. Siegel, 279 Neb. 174, 777 N.W.2d 259
(2010). See First Nat. Bank of York v. Critel, 251 Neb. 128, 555 N.W.2d
773 (1996).
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sheriff’s sale unless the income withholding notices constituted
executions within the meaning of § 42-371(5).
the term “execution” is not specifically defined in § 42-371,
but it is generally defined by Neb. Rev. Stat. § 25-1501
(Reissue 2008) as a “process of the court.” this statutory
definition is consistent with the commonly accepted under-
standing of the term as a “formal document issued by the
court that authorizes a sheriff to levy upon the property of
a judgment debtor”4 or a “court order directing a sheriff or
other officer to enforce a judgment, usu[ally] by seizing and
selling the judgment debtor’s property.”5 In St. Joseph Dev.
Corp. v. Sequenzia,6 the Court of Appeals held that garnish-
ment was an execution within the meaning of Neb. Rev. Stat.
§ 25-1515 (Reissue 1995), which provided that a judgment
would become dormant if “execution shall not be sued out”
within specified time periods. McEwin argues that wage with-
holding to collect child support is analogous to garnishment
and should therefore be considered an execution within the
meaning of § 42-371(5).
Garnishment is a legal remedy which involves issuance
of a summons and a court order as a means of enforcing the
authority of a court with respect to a judgment.7 Nebraska has
a statutory procedure whereby a party may apply for and obtain
a court order directing an employer to withhold previously
ordered child support from the wages of a parent,8 but there
is no indication in the record that this procedure was utilized
in this case, and we express no opinion as to whether it would
constitute an “execution” within the meaning of § 42-371(5).
Here, the district court treated the income withholding notices
4 30 Am. Jur. 2d Executions § 47 at 84 (2005).
5 black’s Law Dictionary 650 (9th ed. 2009).
6 St. Joseph Dev. Corp. v. Sequenzia, 7 Neb. App. 759, 585 N.W.2d 511
(1998), overruled on other grounds, Breeden v. Nebraska Methodist Hosp.,
257 Neb. 371, 598 N.W.2d. 441 (1999).
7 See, Neb. Rev. Stat. § 25-1056 (Reissue 2008); J.K. v. Kolbeck, 257 Neb.
107, 595 N.W.2d 875 (1999).
8 See Neb. Rev. Stat. §§ 42-364.01 to 42-364.14 (Reissue 2008).
Fox v. WHItbECk 	79
Cite as 280 Neb. 75

as being issued pursuant to the Income Withholding for Child
Support Act (IWCSA).9 that determination is not challenged in
this appeal, and we agree that it is correct.
A stated purpose of the IWCSA is “to provide a simplified
and relatively automatic procedure for implementing income
withholding in order to guarantee that child, spousal, and medi-
cal support obligations are met when income is available for
that purpose.”10 the Legislature has stated that while income
withholding under the IWCSA is the “preferred technique”
for enforcement of such obligations, “other techniques such
as liens on property and contempt proceedings should be used
when appropriate.”11 Under the IWCSA, “A support order shall
constitute and shall operate as an assignment, to the State
Disbursement Unit, of that portion of an obligor’s income as
will be sufficient to pay the amount ordered for child, spousal,
or medical support . . . .”12 the IWCSA provides that “[t]he
title IV-D Division of the Department of Health and Human
Services or its designee shall be responsible for administer-
ing income withholding.”13 the Department of Health and
Human Services is authorized by the IWCSA to send notices
to an employer directing that an amount be withheld from the
income of a parent in order to reduce or satisfy that parent’s
child support obligation.14
[3] Although the income withholding notices in this case
were filed in the district court and identify the proceedings
in which the child support judgment was entered, there is no
indication that they were issued by or transmitted by the court.
to the contrary, they appear to have been authorized and issued
by the Department of Health and Human Services and, in one
instance, the Nebraska Child Support Payment Center. We read
the language of §§ 42-371 and 43-1702 as a recognition by the
9 Neb. Rev. Stat. §§ 43-1701 to 43-1743 (Reissue 2008).
10 § 43-1702.
11 Id.
12 § 43-1718.
13 Id.
14 See § 43-1723.
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Legislature that execution is one of several means of collecting
child support, not as a statement that all methods of collecting
child support are executions. thus, while the income withhold-
ing notices in this case are part of a legally authorized admin-
istrative remedy for the collection of child support, they are
not “executions” within the meaning of § 42-371(5) because
they are not processes of the court. the district court correctly
concluded that McEwin’s child support judgment had ceased
to be a lien on the real property which was the subject of the
execution and sheriff’s sale initiated by Fox.
other obJectionS to conFirMation oF Sale
McEwin argues that even if she no longer had an enforce-
able lien, she still had an enforceable child support judgment,
and that therefore, the district court erred in confirming the
sheriff’s sale without conducting a hearing on her objections
to confirmation based upon irregularities in the sale and the
amount of the sale price. We find merit in this argument.
[4] Child support judgments do not become dormant by
lapse of time, and the fact that a child support judgment ceases
to be a lien by operation of § 42-371(5) does not extinguish
the judgment itself or cause it to become dormant.15 Although
McEwin did not have an enforceable lien at the time of the
sheriff’s sale, she was a judgment creditor with an interest in
any potential proceeds of the sale exceeding the amount nec-
essary to satisfy Fox’s lien. Accordingly, she had standing to
object to the confirmation of the sale on the ground of irregu-
larities which resulted in a sale price lower than fair market
value. McEwin filed an objection alleging such irregularities,
but there is no indication that she was permitted to present
evidence in support of her objection. the hearing regarding the
validity of McEwin’s lien commenced on February 20, 2009,
prior to the filing of the objection on March 20, and was limited
to the validity of the lien. the hearing was continued and con-
cluded on April 1, but the record does not show that the scope
of the hearing was expanded to include McEwin’s objection to
15 See, Nowka v. Nowka, 157 Neb. 57, 58 N.W.2d 600 (1953); Freis v.
Harvey, 5 Neb. App. 679, 563 N.W.2d 363 (1997).
Fox v. WHItbECk 	81
Cite as 280 Neb. 75

confirmation. the district court overruled McEwin’s objection
and confirmed the sale based solely upon its determination that
McEwin’s lien had lapsed, with no mention of the other issues
she raised. because McEwin was not given an opportunity to
be heard regarding her objections unrelated to her claimed lien,
we conclude that the district court abused its discretion in con-
firming the sale.
CoNCLUSIoN
We 	affirm 	the 	determination 	of 	the 	district 	court 	that
McEwin’s child support lien had lapsed by operation of
§ 42-371(5) because there had been no execution on her
child support judgment within the prescribed time period. but
because she was not given an opportunity to be heard as to her
other objections to confirmation of the sale, and the district
court apparently did not consider her objections, we reverse the
order confirming the sale and remand for further proceedings
consistent with this opinion.
aFFirMed in part, and in part reverSed and
reManded For Further proceedingS.
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