In re Trust of Hrnicek

law. Recognizing an employer’s right to implement changes
unilaterally under the circumstances described above does
not adversely affect the policy behind the IRA. We there-
fore affirm.
ConClusIon
For 	the 	reasons 	stated 	above, 	we 	affirm 	the 	order 	of
the CIR.
A ffirmed.
StephAn, J., not participating.
in re truSt of L eo A. hrnicek ,
ALSo known AS L.A. hrnicek , m.d., deceASed.
A drienne h. Brietzke , AppeLLAnt, v. firSt
nAtionAL BAnk north pLAtte , AppeLLee .
792 n.W.2d 143
Filed December 3, 2010. 	no. s-10-192.
1. Decedents’ Estates: Appeal and Error. Appeals of matters arising under the
nebraska Probate Code are reviewed for error on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Decedents’ Estates: Appeal and Error. In reviewing the judgment awarded by
the probate court in a law action, an appellate court does not reweigh evidence,
but considers the evidence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
4. Contracts: Equity. The right of retainer lies in equity.
5. Limitations of Actions: Judgments. It is axiomatic that a court’s order is not
subject to a statute of limitations defense.
Appeal from the County Court for Morrill County: rAndin
roLAnd, Judge. Affirmed.
Paul E. Hofmeister and Joseph A. Kishiyama, of Chaloupka,
Holyoke, Hofmeister, snyder & Chaloupka, P.C., l.l.o., for
appellant.
John K. sorensen, of sorensen, Mickey & Hahn, P.C., for
appellee.
898 	280 nEbRAsKA REPoRTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

heAvicAn, 	c.J., 	wright, 	connoLLy, 	gerrArd, 	StephAn,
mccormAck, and miLLer-L ermAn, JJ.
heAvicAn, C.J.
InTRoDuCTIon
First national bank north Platte (FnbnP), as successor
trustee of the trust of leo A. Hrnicek, brought an action seek-
ing to retain proceeds of the trust due to Adrienne H. brietzke.
The county court found brietzke in contempt and otherwise
granted FnbnP’s request. brietzke appeals. The primary issue
on appeal is whether FnbnP can recover amounts owed to the
trust by a beneficiary by retaining trust proceeds owed to that
beneficiary. We affirm.
FACTuAl bACKGRounD
leo A. Hrnicek and his wife had six children. In 1995,
Hrnicek loaned $85,000, at 7-percent interest, to his daughter,
brietzke, and her husband. The loan was to be repaid beginning
on April 1, 1995, over 15 years, for a total of 180 payments of
$764.01 each. According to the terms of the loan, the last pay-
ment was to be made on March 1, 2010.
Hrnicek died on november 2, 1997. upon his death, Hrnicek
bequeathed all his property to the trustees of the “l. A.
Hrnicek, M.D. living Trust,” dated May 30, 1997. Included in
this property was the promissory note reflecting the loan from
Hrnicek to brietzke.
It appears that family drama ensued after Hrnicek’s death,
and litigation followed. on April 23, 2003, the county court
approved a settlement entered into by various members of the
family. That settlement provided that brietzke and her cotrustee
would both resign as trustees, to be replaced by FnbnP. In
addition, brietzke, whose counsel was a signatory to this settle-
ment, “acknowledge[d] that she is indebted to [the] Trust,” and
that she agreed to “pay such debt in full according to the terms
of the note.” According to the record, payment on the loan had
last been received from brietzke on April 18, 2002.
Despite her promise to repay, brietzke made no further pay-
ments on the loan. Thereafter, on June 1, 2009, FnbnP filed a
motion asking the court to approve “retainage of trust distribu-
tion” otherwise owed to brietzke on the ground that she had
In RE TRusT oF HRnICEK 	899
Cite as 280 neb. 898

not repaid amounts due to the trust under the court’s April 23,
2003, order. brietzke objected. Then on July 13, 2009, FnbnP
filed an application with the county court asking that brietzke
be found in contempt for failing to abide by the court’s order
to repay the loan. FnbnP asked that the court order brietzke
to purge the contempt by repaying the principal and interest
owed or, alternatively, allowing FnbnP to purge the contempt
by withholding distributions due brietzke under the terms of
the trust.
A hearing was held on August 26, 2009, on both FnbnP’s
motion and its contempt application. At that hearing, a rep-
resentative for FnbnP indicated that brietzke had made no
payments since April 18, 2002, had received about $103,000 in
distributions under the trust, and could expect about $350,000
more before the trust was closed. The representative indicated
that letters requesting repayment of the loan had been sent to
brietzke’s counsel.
on september 28, 2009, following the hearing and prior to
the court’s decision, brietzke filed a motion for distribution
of the proceeds of the trust. on February 3, 2010, the county
court found brietzke in contempt of court and allowed FnbnP
to “retain sufficient funds from any future distributions . . . to
fully satisfy the outstanding balance of the promissory note
owed to the trust in the amount of $55,600.11, plus per diem
interest accumulating at a rate of $10.67 from April 18, 2002.”
brietzke appeals.
AssIGnMEnTs oF ERRoR
brietzke assigns that the county court erred in (1) allow-
ing FnbnP to retain funds from her distribution to repay the
loan owed the trust and (2) calculating the amount due, since
recovery of all or a portion of the amount due is barred by the
applicable statute of limitations.
sTAnDARD oF REVIEW
[1-2] Appeals of matters arising under the nebraska Probate
Code are reviewed for error on the record.1 When reviewing
1 see In Re Estate of Failla, 278 neb. 770, 773 n.W.2d 793 (2009).
900 	280 nEbRAsKA REPoRTs

a judgment for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.2
[3] In reviewing the judgment awarded by the probate court
in a law action, an appellate court does not reweigh evidence,
but considers the evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor of
the successful party, who is entitled to every reasonable infer-
ence deducible from the evidence.3
AnAlYsIs
Retainer.
In her first assignment of error, brietzke assigns that the
county court erred in allowing FnbnP to retain, or offset, from
her distribution from the trust the unpaid amount of her debt
owed to the trust, plus interest. brietzke argues that while the
probate code allows for such retention, the trust code makes no
specific reference to this type of remedy.
The probate code does allow for retention:
unless a different intention is indicated by the will, the
amount of a noncontingent indebtedness of a successor to
the estate if due, or its present value if not due, shall be
offset against the successor’s interest; but the successor
has the benefit of any defense which would be available
to him in a direct proceeding for recovery of the debt.4
This rule was the common-law rule.5 And, as is noted by brietzke,
there is not a similar statute in nebraska’s trust code.
[4] However, neb. Rev. stat. § 30-3806 (Reissue 2008), a
part of nebraska’s trust code, provides that “[t]he common
2 Id.
3 In re Estate of Matteson, 267 neb. 497, 675 n.W.2d 366 (2004).
4 neb. Rev. stat. § 30-24,101 (Reissue 2008).
5 In re Estate of Williams, 148 neb. 208, 26 n.W.2d 847 (1947); Nelson v.
Janssen, 144 neb. 811, 14 n.W.2d 662 (1944); Fischer v. Wilhelm, 139
neb. 583, 298 n.W. 126 (1941); Stanton v. Stanton, 134 neb. 660, 279
n.W. 336 (1938); First Trust Co. v. Cornell, 114 neb. 126, 206 n.W. 749
(1925).
In RE TRusT oF HRnICEK 	901
Cite as 280 neb. 898

law of trusts and principles of equity supplement the nebraska
uniform Trust Code, except to the extent modified by the code
or another statute of this state.” And as we noted in Fischer v.
Wilhelm,6 the right of retainer lies in equity.
Moreover, the Restatement (second) of Trusts also supports
the conclusion of the county court that FnbnP can retain a
portion of brietzke’s distribution. section 251A provides that
[i]f a testator leaves property in trust and a beneficiary
of the trust was indebted to the testator, the interest of
the beneficiary in the trust estate is subject to a charge
for the amount of his indebtedness, unless the testator
manifested an intention to discharge the debt, or mani-
fested an intention that the beneficiary should be entitled
to enjoy his interest even though he should fail to pay his
indebtedness.7
There is nothing in this record that would indicate any con-
trary intention.
This general rule has been relied upon again and again in trust
cases in other jurisdictions—some citing to the Restatement
and others to common law.8 And in Minnesota, the Court
of Appeals has twice implied, without discussion, that the
Minnesota version of the probate code, which is codified in
nebraska at § 30-24,101, is applicable to trusts as well.9
We conclude that the retainer of a distribution is a valid,
equitable remedy available to trustees in situations such as
this. It was therefore not error for the county court to order
such in this case. brietzke’s first assignment of error is with-
out merit.
6 Fischer, supra note 5.
7 Restatement (second) of Trusts § 251A at 634 (1959).
8 Hurtig v. Gabrielson, 525 n.W.2d 612 (Minn. App. 1995); Matter of Will
of Cargill, 420 n.W.2d 268 (Minn. App. 1988); In re Estate of Watters,
245 or. 477, 422 P.2d 676 (1967); County Nat. Bank etc. Co. v. Sheppard,
136 Cal. App. 2d 205, 288 P.2d 880 (1955); In re Trust of Lunt, 235 Iowa
62, 16 n.W.2d 25 (1944); Sheridan v. Riley, 32 backes 288, 133 n.J. Eq.
288, 32 A.2d 93 (1943). see, also, Brown et al. v. Sperry, 182 Miss. 488,
181 so. 734 (1938) (utilizing rule in probate case).
9 Hurtig, supra note 8; Matter of Will of Cargill, supra note 8.
902 	280 nEbRAsKA REPoRTs

Statute of Limitations.
brietzke next assigns that the county court erred in ordering
the particular amount retained from her distribution, because a
portion of the principal and interest could no longer be recov-
ered, as it was barred by the applicable statute of limitations.10
brietzke argues that any payment and accompanying interest
due more than 5 years earlier is not recoverable.
[5] brietzke overlooks the fact that the note signed by her
and evidencing her obligation to pay was reduced to a judg-
ment when she acknowledged that debt and agreed to pay it
in the 2003 settlement, which settlement was approved by the
county court. It is axiomatic that a court’s order is not sub-
ject to any limitations defense.11 Moreover, as was conceded
by brietzke’s counsel at oral arguments, a court’s exercise of
its contempt powers also would not be subject to any statute
of limitations.
brietzke’s second assignment of error is also without merit.
Calculation of Amount Due.
We finally note that at oral argument before this court,
brietzke took issue with the calculation of the amount due, and
thus to be retained, from brietzke’s distribution from the trust.
but brietzke did not assign this as error, nor argue this in her
brief. We therefore decline to address it further.
ConClusIon
Retainer is a valid, equitable remedy available to the trustee
in this case. And the trust’s right of retainer is not barred by
any statute of limitations. The decision of the county court is
therefore affirmed.
A ffirmed.
10 see neb. Rev. stat. § 25-205 (Reissue 2008).
11 see id.
In RE TRusT oF HRnICEK 	903
Cite as 280 neb. 898