§ 42-371 — Judgments and orders;liens; release; subordination; procedure; time limitation on lien; security; attachment; priority

Nebraska § 42-371

• Jurisdiction: Nebraska
• Ch. 42: Households and Families

Text

Under the Uniform Interstate
Family Support Act and sections 42-347 to 42-381 , 43-290 , 43-512 to 43-512.10 ,
and 43-1401 to 43-1418 :
(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;
(2) The judgment creditor
may execute a partial or total release of the judgment or a document subordinating
the lien of the judgment to any other lien, generally or on specific real
or personal property.
Release of a judgment for child support or spousal support or subordination of a lien of a judgment for child support or spousal support may, if all such payments are current and not delinquent or in arrears, be released or subordinated by a release or subordination document executed by the judgment creditor, and such document shall be sufficient to remove or subordinate the lien. A properly executed, notarized release or subordination document explicitly reciting that all child support payments or spousal support payments are current is prima facie evidence that such payments are in fact
current. For purposes of this section, any delinquency or arrearage of support payments shall be determined as provided in subsection (2) of section 42-358.02 ;
(3) If a judgment creditor refuses to execute a release of the judgment or subordination of a lien as provided in subdivision (2) of this
section or the support payments are not current, the person desiring such release or subordination may file an application for the relief desired in the court which rendered the original judgment.
A copy of the application and a notice of hearing shall be served on the judgment
creditor either personally or by registered or certified mail no later than
ten days before the date of hearing. If the court finds that the release or
subordination is not requested for the purpose of avoiding payment and that
the release or subordination will not unduly reduce the security, the court
may issue an order releasing real or personal property from the judgment lien
or issue an order subordinating the judgment lien. As a condition for such
release or subordination, the court may require the posting of a bond with
the clerk in an amount fixed by the court, guaranteeing payment of the judgment. If the court orders a release or subordination,
the court may order a judgment creditor who, without a good faith reason,
refused to execute a release or subordination to pay the judgment debtor's
court costs and attorney's fees involved with the application brought under
this subdivision. A showing that all support payments are current shall be
evidence that the judgment creditor did not have a good faith reason to refuse
to execute such release or subordination. For purposes of this
section, a current certified copy of support order payment history from the
Title IV-D Division of the Department of Health and Human Services setting
forth evidence that all support payments are current is prima facie evidence
that such payments are in fact current and is valid for thirty days after
the date of certification;
(4) Full faith and credit shall be accorded to a lien arising
by operation of law against real and personal property for amounts overdue
relating to a support order owed by a judgment debtor or obligor
who resides or owns property in this state when another state agency, party,
or other entity seeking to enforce such lien complies with the procedural
rules relating to the filing of the lien in this state. The state agency,
party, or other entity seeking to enforce such lien shall send a certified
copy of the support order with all modifications, the notice of lien prescribed
by 42 U.S.C. 652(a)(11) and 42 U.S.C. 654(9)(E), and the appropriate fee to
the clerk of the district court in the jurisdiction within this state in which
the lien is sought. Upon receiving the appropriate documents and fee, the
clerk of the district court shall accept the documents filed and such acceptance
shall constitute entry of the foreign support order for purposes of this section
only. Entry of a lien arising in another state pursuant to this section shall
result in such lien being afforded the same treatment as liens arising in
this state. The filing process required by this section shall not be construed
as requiring an application, complaint, answer, and hearing as might be required
for the filing or registration of foreign judgments under the Nebraska Uniform
Enforcement of Foreign Judgments Act or the Uniform Interstate Family Support
Act;
(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;
(6) Alimony and property settlement award judgments, if not
covered by subdivision (5) of this section, shall cease to be a lien on real
or registered personal property ten years from the date (a) the judgment was
entered, (b) the most recent payment was made, or (c) the most recent execution
was issued to collect the judgment, whichever is latest, and such lien shall
not be reinstated;
(7) The court may in any case, upon application or its own
motion, after notice and hearing, order a person required to make payments
to post sufficient security, bond, or other guarantee with the clerk to insure
payment of both current and any delinquent amounts. Upon failure to comply
with the order, the court may also appoint a receiver to take charge of the
debtor's property to insure payment. Any bond, security, or other guarantee
paid in cash may, when the court deems it appropriate, be applied either to
current payments or to reduce any accumulated arrearage;
(8)(a) The lien of a mortgage or deed of trust which secures
a loan, the proceeds of which are used to purchase real property, and (b)
any lien given priority pursuant to a subordination document under this section
shall attach prior to any lien authorized by this section. Any mortgage or
deed of trust which secures the refinancing, renewal, or extension of a real
property purchase money mortgage or deed of trust shall have the same lien
priority with respect to any lien authorized by this section as the original
real property purchase money mortgage or deed of trust to the extent that
the amount of the loan refinanced, renewed, or extended does not exceed the
amount used to pay the principal and interest on the existing real property
purchase money mortgage or deed of trust, plus the costs of the refinancing,
renewal, or extension; and
(9) Any lien authorized by this section against personal property
registered with any county consisting of a motor vehicle or mobile home shall
attach upon notation of the lien against the motor vehicle or mobile home
certificate of title and shall have its priority established pursuant to the
terms of section 60-164 or a subordination document executed under this section.

Legislative History

Source: Laws 1972, LB 820, § 25; Laws 1975, LB 212, § 2; Laws 1980, LB 622, § 3; Laws 1985, Second Spec. Sess., LB 7, § 19; Laws 1986, LB 600, § 9; Laws 1991, LB 715, § 3; Laws 1993, LB 500, § 52; Laws 1993, LB 523, § 3; Laws 1994, LB 1224, § 47; Laws 1997, LB 229, § 19; Laws 1999, LB 594, § 7; Laws 2004, LB 1207, § 29; Laws 2005, LB 276, § 100; Laws 2007, LB554, § 36; Laws 2008, LB1014, § 35; Laws 2011, LB673, § 1. Cross References: Nebraska Uniform Enforcement of Foreign Judgments Act, see section 25-1587.01. Uniform Interstate Family Support Act, see section 42-701. Annotations: 1. Applicability of section 2. Authority of court 3. Lien 4. Miscellaneous 1. Applicability of section This section is applicable to monetary property settlement judgments. Lacey v. Lacey, 215 Neb. 162, 337 N.W.2d 740 (1983). This section refers to judgment creditors for support in cases of legal separation, judgment creditors for temporary or permanent support payments or alimony, judgment creditors for child support, and judgment creditors for alimony. Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980). In the absence of any evidence that a person ordered to pay child support was materially prejudiced by delay in assertion of claim for child support, remarriage of the parties did not operate to prohibit the party for whose benefit child support was ordered following the first divorce from instituting action following the second divorce to collect arrearages for child support due between date of the first divorce and subsequent remarriage. Scheibel v. Scheibel, 204 Neb. 653, 284 N.W.2d 572 (1979). 2. Authority of court Under subsection (6) of this section, a court has discretion to require reasonable security for an obligor's current or delinquent support obligations when compelling circumstances require it. Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008). An order entered pursuant to subsection (5) of this section, requiring a person to post sufficient security, is a somewhat extraordinary and drastic remedy, and such order should be invoked only when compelling circumstances require it. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997). Child support payments are a vested property right of the payee as each accrues, and a court, therefore, may not forgive or modify past-due child support, but may modify the amount of future payments. Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991). This section gives to a court which has entered a judgment for property division payable in installments, authority to release or subordinate the judgment under the conditions prescribed in the statute. Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980). An order requiring security to be given and appointing a receiver are somewhat extraordinary and drastic measures and such an order should be made only when it appears to the court that such an order is necessary to assure the payment of alimony and child support as decreed. Casselman v. Casselman, 204 Neb. 565, 284 N.W.2d 7 (1979). It is not the court's prerogative to determine what method or means should be used in placing security for child support payment. Casselman v. Casselman, 204 Neb. 565, 284 N.W.2d 7 (1979). 3. Lien An appearance bond deposited by the defendant into the court registry to secure the defendant's appearance in a criminal proceeding was not personal property registered with a county office, within the meaning of the statute creating a lien on personal property of a child support obligor registered with a county office; statute limited personal property subject to lien for unpaid child support as tangible goods and chattels, and money was neither good nor chattel, but, rather, was intangible property. State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018). Under this section, all orders and judgments for child support in the specified proceedings operate as statutory liens. Such liens attach from the date of the judgment to the obligor's real property and any personal property registered with any county officer, for arrears and as security for future obligations. Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013). 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 subsection (5) of this section does not extinguish the judgment itself or cause it to become dormant. Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (2010). Alimony judgments are liens, and if the judgments precede a mortgage and are recorded, they will have priority over that mortgage. McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993). A judgment is not a lien upon the judgment debtor's equitable interest in real estate until the commencement of the creditor's bill to subject it to payment of the judgment or until execution is levied upon the interest of a judgment debtor who is in possession of the real estate in which he has the equitable interest. Action Realty Co., Inc. v. Miller, 191 Neb. 381, 215 N.W.2d 629 (1974). Pursuant to subsection (2) of this section, the cessation of a lien under this section does not render a child support judgment dormant. Freis v. Harvey, 5 Neb. App. 679, 563 N.W.2d 363 (1997). 4. Miscellaneous 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 subsection (5) of this section. Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (2010). Fees awarded under this section are the property of the client, not the attorney, and the client may execute a release of the judgment awarding fees. Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980).