Opinion
No. A-12-306
01-22-2013
ELVIA WARE, APPELLANT, v. GARY D. WARE, APPELLEE.
Maria A. Vera, of Vera Law Firm, for appellant. Jennifer A. Thompson for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed.
Maria A. Vera, of Vera Law Firm, for appellant.
Jennifer A. Thompson for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Elvia Ware appeals from an order of the district court for Sarpy Court annulling her marriage to Gary D. Ware. Elvia challenges the court's approval of service by publication, its entry of the annulment decree, its distribution of marital debts, and its determination of attorney fees. Because we find that there is no merit to Elvia's first two assigned errors and that she did not argue her third and fourth assigned errors, we affirm.
BACKGROUND
The parties were married on December 7, 2010. Gary filed a complaint for annulment on October 18, 2011, alleging that he was induced to enter into the marriage through fraud and that such fraud was perpetrated by Elvia in an effort to stay in the United States legally. Personal service was attempted at Elvia's last known place of employment, but service was unsuccessful. The process server noted that Elvia was "no longer employed at given address per human resources." Thereafter, Gary's counsel conducted an Internet search in an effort to obtain a current address, but no results were found. Counsel filed a motion for an order allowing for service by publication and an affidavit in support thereof. The court entered an order allowing service by publication.
Thereafter, Gary published notice of the complaint and the deadline to file an answer once each week for three successive weeks in a local publication, in accordance with Neb. Rev. Stat. § 25-519 (Reissue 2008). Service was completed when the publication filed an affidavit of publication with the court. See Neb. Rev. Stat. § 25-520 (Reissue 2008).
Elvia did not file an answer, and Gary filed a motion for default judgment. A hearing was held on the motion, and Gary testified at such hearing.
Following the hearing, the court entered a decree of annulment on March 12, 2012, finding that Gary was induced to enter into the marriage through fraud by Elvia and that such fraud was perpetrated in an effort by Elvia to stay in the United States legally. The court ordered that the parties shall retain all personal property in his or her possession and awarded each party the assets and debts in each respective party's name. The court further ordered each party to pay his or her own attorney fees.
ASSIGNMENTS OF ERROR
Elvia assigns that the trial court erred in (1) allowing service by publication, (2) finding there was sufficient evidence to grant an annulment, (3) distributing marital debts, and (4) determining attorney fees.
STANDARD OF REVIEW
In an appeal from the entry of a default judgment, or the denial of a motion to stay entry of a default judgment, an appellate court will affirm the action of the trial court in the absence of an abuse of discretion. Galaxy Telecom v. SRS, Inc., 13 Neb. App. 178, 689 N.W.2d 866 (2004). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
ANALYSIS
Service by Publication.
Elvia first assigns that the trial court erred in allowing service by publication. She contends that Gary did not show that he attempted personal service in a reasonably diligent manner.
The statute authorizing substitute service by publication, Neb. Rev. Stat. § 25-517.02 (Reissue 2008), provides: "Upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made . . . (2) by publication . . . ."
The Nebraska Supreme Court has found:
A reasonably diligent search for the purpose of justifying service by publication does not require the use of all possible or conceivable means of discovery, but is such an inquiry as a reasonably prudent person would make in view of the circumstances andIn re Interest of A.W., 224 Neb. 764, 766, 401 N.W.2d 477, 479 (1987). The court further stated, "Whether all reasonable means have been exhausted must be determined by the circumstances of each particular case." Id.
must extend to those places where information is likely to be obtained and to those persons who, in the ordinary course of events, would be likely to receive news of or from the absent person.
The affidavit filed by Gary's counsel in support of the motion for an order allowing for service by publication stated that counsel had filed a praecipe asking for summons to be served on Elvia and that a civil process server attempted to serve Elvia, but service was returned because Elvia no longer worked at the given employment address. The affidavit further stated that Elvia's last known address was Gary's home address and that Elvia had moved out of Gary's home several months before the complaint for annulment was filed. The affidavit stated that Elvia's residence and whereabouts were unknown to Gary. Finally, the affidavit stated that Gary's counsel had executed an Internet search in an effort to obtain a current address for Elvia, but no results were found.
Therefore, the evidence shows that a reasonably diligent search was performed in an effort to locate and serve Elvia, to no avail. Accordingly, the trial court did not err in allowing service by publication.
Sufficiency of Evidence.
Elvia next assigns that the trial court erred in finding there was sufficient evidence to grant an annulment. Under Neb. Rev. Stat. § 42-374 (Reissue 2008), a marriage can be annulled under five circumstances: (1) the marriage between the parties was prohibited by law, (2) either party was impotent at the time of the marriage, (3) either party had a spouse living at the time of the marriage, (4) either party was mentally ill or a person with mental retardation at the time of the marriage, or (5) there was force or fraud. An annulment action can be granted only when one or more of the grounds enumerated in § 42-374 exist. McCombs v. Haley, 13 Neb. App. 729, 700 N.W.2d 659 (2005).
In Nebraska, a marriage is presumed valid until proved otherwise. See Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87 (1984). The burden of overcoming the presumption that a marriage is valid is upon the party seeking annulment. See Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980). Thus, Gary had the burden of proving that his marriage to Elvia was invalid and that it should be annulled for one or more of the reasons in § 42-374.
In the instant case, the annulment was granted based on Gary's motion for default judgment, which he filed after Elvia failed to file an answer in response to his complaint. Where a defendant is in default, the allegations of the petition are to be taken as true against him or her, except allegations of value and amount of damage; and if the petition states a cause of action, the plaintiff is entitled to judgment without proof except as to the quantum of damages. Hatcher v. McShane, 12 Neb. App. 239, 670 N.W.2d 638 (2003).
Gary's complaint states a cause of action for an annulment based on fraud. It states that he and Elvia were married on December 7, 2010; that Gary entered into the marriage in good faith; that at the time of the marriage ceremony, Gary was induced to enter into the marriage through fraud; and that such fraud was perpetrated by Elvia in an effort to stay in the United States legally.
In addition to the undisputed allegations in Gary's complaint, Gary also testified at the default judgment hearing that Elvia did not move in with him after the marriage ceremony and that the two of them have not had sexual relations. Gary testified that when he married Elvia, his previous wife had recently died. He testified that he believed Elvia took advantage of him while he was under duress from his wife's death and that Elvia married him only so she could became a legal resident of the United States. He stated she was not presently in the country legally. He testified that at the time of trial, he did not have any contact with Elvia and he did not know her whereabouts.
Elvia argues that the allegations in Gary's complaint and the evidence at the hearing can be disproved, but her argument is based on information that is not in the record before us. Elvia attached various documents to her brief to this court and relies on them to support her arguments within her brief. However, such documents were not presented as evidence to the district court and, as such, are not in the bill of exceptions before us. Thus, we cannot consider them here. See Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011) (bill of exceptions is only vehicle for bringing evidence before appellate court; evidence which is not made part of bill of exceptions may not be considered).
Based on the record before us, we cannot conclude that the trial court abused its discretion in granting Gary's motion for default judgment and entering a decree of annulment based on fraud.
Marital Debts and Attorney Fees.
Elvia also assigns that the trial court erred in its distribution of marital debts and its attorney fees determination. However, Elvia fails to argue either of these assignments of error in her brief. To be considered by an appellate court, an error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Gengenbach v. Hawkins Mfg., 18 Neb. App. 488, 785 N.W.2d 853 (2010). Accordingly, we do not consider Elvia's last two assignments of error.
CONCLUSION
We conclude that service by publication was proper under the circumstances of this case and that the trial court did not abuse its discretion in granting an annulment on the basis of fraud. Accordingly, the judgment of the district court is affirmed.
AFFIRMED.