Child Support Enforcement - Sarpy County Nebraska

The second is used in aid of an execution at law, as to set aside an encumbrance
or a transfer of property made to defraud creditors.
There are three requirements for an equitable assets creditor's bill. First, the
creditor must have a judgment against the debtor: second, the creditor must "`allege
and show that he has exhausted his remedy at law,'" i.e., the creditor must show that
execution has not satisfied the judgment: and finally, the debtor must have some
interest in property that the creditor is unable to reach through execution.
The dispositive issue here is whether [the NCP’s] beneficial interest in the
discretionary support trusts is an "interest in property" which may be reached by an
equitable assets creditor's bill to satisfy [the CP’s] judgment for child support
arrearage.
[W]e held that an equitable assets creditor's bill may reach a judgment debtor's
beneficial interest in a resulting trust which came into being because of the debtor's
failed attempt to dispose of real estate by inter vivos trust, reasoning that the debtor
remained the equitable owner of property which could be used to satisfy the
judgment. We have also held that a debtor's contingent interest as an heir in an
estate under administration may be reached by an equitable assets creditor's bill,
reasoning that while such interest was contingent, it was still an interest in property
which was not exempt from being applied to the payment of the debt.
Our jurisprudence is consistent with the following statement of the general rule for
determining whether a beneficiary's interest in a trust created by a third party is a
property interest which may be reached by an equitable assets creditor's bill:
[I]n order for equity to subject to the claims of creditors the interest of the beneficiary, it
is essential that it be such an interest as could be enforced by the beneficiary himself:
creditors cannot reach the beneficiary's interest if the trustee has complete
discretion not only as to the time and manner of conferring the intended benefit but
also as to whether it shall be conferred at all, or if disbursements are restricted to such
amounts as are necessary for the comfortable maintenance and support of the cestui que
trust.
21 Am. Jur. 2d Creditors' Bills § 35 at 30 (1998).
Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (June 2010)
Facts: Dad owed back child support to two mothers. Mom #1 had a lien on his real estate, but the lien
had lapsed. Mom #2 initiated an execution and sheriff’s sale of the real estate, and purchased the
property at a fire sale price. Mom #1 objected.
Held: Even though Mom #1 no longer had a valid lien on the real estate, she had standing to object to
the fire sale price of the dad’s property.
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 understanding of the
term as a “formal document issued by the court that authorizes a sheriff to levy upon
the property of a judgment debtor” 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.”
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.
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.”
- 119 -