Szawicki v. Szawicki

of sentence. The State agrees on appeal that the restitution por-
tion of the order was improper and has joined Cerny in request-
ing that it be stricken from the written sentencing order.
V. CONCLUSION
We find no merit to Cerny’s assertion that the term of
incarceration imposed was excessive. We modify the written
sentencing order to strike the order of restitution in the amount
of $666.78.
A ffirmed As modified.
John szAwicki , Appellee , v. G enevieve c.
szAwicki et Al ., AppellAnts.
772 N.W.2d 110
Filed August 4, 2009. 	No. A-08-746.
1. Equity: Appeal and Error. On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the conclusion reached by
the trial court.
2. Homesteads: Contracts: Conveyances. Neb. Rev. Stat. § 40-104 (Reissue 2008)
provides that the homestead of a married person cannot be conveyed unless the
instrument by which it is conveyed is executed and acknowledged by both the
husband and wife. This section applies to contracts for sale as well as to convey-
ances or encumbrances.
3. Homesteads: Deeds. A deed purporting to convey a homestead is void if not
executed by both husband and wife.
4. Deeds. A deed from husband to wife need not be signed by the wife.
5. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the controversy before it.
6. Rules of the Supreme Court: Appeal and Error. A party filing a cross-appeal
must set forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.
7. ____: ____. The cross-appeal section of a party’s brief must set forth a separate
title page, a table of contents, a statement of the case, assigned errors, proposi-
tions of law, and a statement of facts.
8. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
Appeal from the District Court for Douglas County: Joseph
s. troiA, Judge. Reversed and vacated, and cause remanded for
further proceedings.
820 	17 NEbRASkA AppELLATE REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

Martin A. Cannon, of Cannon Law Office, for appellants.
Thomas R. Ostdiek, of Fitzgerald, Schorr, barmettler &
brennan, p.C., L.L.O., for appellee.
inbody, Chief Judge, and sievers and cAssel, Judges.
inbody, Chief Judge.
INTRODUCTION
Genevieve C. Szawicki, Richard McShane, and Frances
Johnston appeal the decision of the Douglas County District
Court determining that Genevieve had no property interest in
real estate purportedly conveyed by Florian Szawicki to her
and her stepson, John Szawicki, as joint tenants with Florian,
who was her husband and John’s father.
STATEMENT OF FACTS
Florian became the fee simple absolute record owner of the
property located in the northeast quarter of Section 8, Township
16 North, Range 13 East of the 6th p.M., also referred to as
3616 ponca Road, Omaha, Douglas County, Nebraska, upon
the death of his first wife in 1978. In 1979, Florian conveyed
the property to himself and his son, John, as joint tenants with
right of survivorship. In 1981, Florian married Genevieve and
she moved into the residence.
On September 23, 1983, Florian and John conveyed the
property to Florian, John, and Genevieve as joint tenants with
right of survivorship. That deed, hereinafter referred to as the
“1983 deed,” was signed and acknowledged only by Florian
and John; it was not signed or acknowledged by Genevieve.
After Florian died in 1985, Genevieve continued to live on the
property. In 1986, Genevieve conveyed the property herself in
an attempt to sever the joint tenancy. Genevieve continued to
live at the home until the summer of 2000, when she suffered
a stroke. After her hospitalization, Genevieve was moved to an
assisted living facility and Genevieve’s two children, McShane
and Johnston, then moved into the home to assist with its con-
tinued care and maintenance.
In June 2005, John filed a complaint against Genevieve,
McShane, and Johnston, requesting that he be declared sole
SzAWICkI v. SzAWICkI 	821
Cite as 17 Neb. App. 820

owner of the property in question, that McShane and Johnston
be ejected from the property, or, in the alternative, that the
property be partitioned. On November 16, John filed a motion
for 	summary 	judgment 	and 	a 	hearing 	was 	held 	thereon.
posthearing, the district court granted leave to Genevieve to
file an affidavit, to which John filed an objection on the basis
of relevancy, foundation, and hearsay. After taking the mat-
ter under advisement, the district court granted the motion
for summary judgment, finding that the 1983 deed was void
because the document did not comply with Neb. Rev. Stat.
§ 40-104 (Reissue 2004) in that Genevieve had not signed the
document. The district court further determined that John was
the fee simple absolute owner of the property in question and
ordered that Genevieve, McShane, and Johnston be ejected
from the property. The district court determined that Genevieve
had an equitable interest in the property and should receive
reimbursement as such. The district court found that there was
a genuine issue as to the amount Genevieve was to be reim-
bursed and set that matter for trial.
Genevieve filed a motion for a new trial and, at the hearing,
requested that a December 15, 2005, affidavit of Genevieve
be submitted. On May 11, 2006, the district court entered an
order nunc pro tunc correcting clerical errors and clarifying
the previous order, in addition to sustaining John’s objections
to Genevieve’s affidavit as to paragraphs 3, 4, and 6 through
9. From that order, Genevieve appealed to this court in case
No. A-06-576, which we summarily dismissed on July 13,
2006, in accordance with Neb. Rev. Stat. § 25-1315 (Reissue
2008), for lack of jurisdiction.
In February 2007, John filed a supplemental complaint
requesting that the district court award him fair market value
rent in the amount of $67,450 for the property from May 2000
through June 2006, the time period during which Genevieve’s
two children occupied the residence. Trial was held on the
supplemental complaint, in addition to the amount of reim-
bursement due to Genevieve.
Genevieve testified that prior to her marriage to Florian,
she had owned her own home which she planned on leaving
to her children upon her death. However, when she married
822 	17 NEbRASkA AppELLATE REpORTS

Florian, she sold that home and used the money, approxi-
mately $24,000, on Florian’s home for repairs and improve-
ments completed while Florian was still alive. She testified
that even though she had been staying at the assisted living
facility since her stroke, she did not ever intend to abandon
the property and continued to make weekly trips to the prop-
erty, in addition to holding family celebrations and holiday
dinners there.
John testified that from April 1985 through May 2006, he
had been in the home only one time for the reading of Florian’s
will and that, during that time, he had never offered to pay for
any expenses associated with the property and had never been
asked by Genevieve or her children to contribute.
Genevieve’s son, McShane, testified that he had paid the
property taxes and insurance on the property since 2000 and
that prior to that time, Genevieve had paid all the property
taxes and expenses. McShane submitted evidence that the prop-
erty taxes had not been delinquent since 1981.
The district court determined that the previous ruling as
to ownership would not be reconsidered; concluded that, due
to John’s lack of action or interest in the property until
2006, Genevieve’s children were not trespassing; and dis-
missed John’s supplemental claim for rent. The district court
further determined that Genevieve be reimbursed for a por-
tion of the expenses she submitted to the court as evidence of
the moneys spent on the property, ordering that she be reim-
bursed $20,389.31.
John filed a motion for new trial, which was overruled after
a hearing on the matter. Genevieve has timely appealed to
this court.
ASSIGNMENTS OF ERROR
Genevieve assigns that the district court erred in finding that
the 1983 deed was void and by excluding certain paragraphs
within her affidavit submitted to the court. John, on cross-
appeal, argues that the district court erred in failing to award
rental fees and damages, in ordering John to pay Genevieve
reimbursement for real estate taxes paid, and in finding that the
1986 deed did not sever the joint tenancy.
SzAWICkI v. SzAWICkI 	823
Cite as 17 Neb. App. 820

STANDARD OF REVIEW
[1] On appeal from an equity action, an appellate court tries
factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion indepen-
dent of the conclusion reached by the trial court. Channer v.
Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005).
ANALYSIS
Deeds.
Genevieve asserts that the district court erred in determining
that the 1983 deed was void due to Genevieve’s lack of sig-
nature and acknowledgment. The district court granted John’s
motion for summary judgment finding that, under § 40-104, the
deed was void.
[2-4] Section 40-104 provides that “[t]he homestead of a
married person cannot be conveyed . . . unless the instrument
by which it is conveyed . . . is executed and acknowledged by
both husband and wife . . . .” This section applies to contracts
for sale as well as to conveyances or encumbrances. Landon
v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757 (1989). A deed
purporting to convey a homestead is void if not executed by
both husband and wife. Krueger v. Callies, 190 Neb. 376, 208
N.W.2d 685 (1973). However, a deed from husband to wife
need not be signed by the wife. Furrow v. Athey, 21 Neb. 671,
33 N.W. 208 (1887).
This particular case presents an interesting question as a
result of the particular facts surrounding the deeds in ques-
tion. The record shows that in 1979, a deed was filed which
conveyed the property in question to Florian and John as joint
tenants with right of survivorship; thus, at the outset, John
and Florian have a legal interest in the property. Then, Florian
married Genevieve, Genevieve moved into the property, and
in 1983, Florian and John conveyed the deed to Florian, John,
and Genevieve, as joint tenants with right of survivorship—the
catch being that the 1983 deed was not signed or acknowledged
by Genevieve.
In his argument that the district court was correct in deter-
mining that the 1983 deed was void, John relies on Krueger
v. 	Callies, 	supra, 	which 	involved 	an 	action 	for 	specific
824 	17 NEbRASkA AppELLATE REpORTS

performance of an alleged agreement for the sale of a home-
stead, where the husband listed the property for sale and made
arrangements and executed a sale agreement to a third party.
Neither husband nor wife acknowledged the sale agreement,
but both acknowledged a warranty deed. However, the deed
failed to describe any land. The Nebraska Supreme Court held
that a deed purporting to convey a homestead is void if not
executed by both husband and wife.
On the other hand, in her argument that the district court
erred in finding that the 1983 deed was void, Genevieve relies
upon Furrow v. Athey, supra, wherein a deed of conveyance of
real estate was executed by the husband directly to the wife
and wherein the Nebraska Supreme Court held that where the
husband and wife occupy the homestead, the title to which is
in the name of the husband, a deed of conveyance from the
husband to the wife, signed and acknowledged by the husband
alone, is valid. The court reasoned as follows:
Statutes creating the homestead right were enacted for
the protection of the family of the husband or wife, if the
head of the family were a debtor, and for the protection of
the husband or wife against a conveyance or encumbrance
by the other. both can join in a conveyance, and by it the
right of the children or other members of the family may
be entirely destroyed; but where the title is held by the
husband, he cannot sell without the consent of the wife
expressed by signing and acknowledging the deed. . . . In
effect, an estate or interest in the land is created, of which
the party not named in the deed cannot be divested by the
sole act of the other.
Furrow v. Athey, 21 Neb. at 672-73, 33 N.W. at 209.
We agree with Genevieve that the application of Furrow v.
Athey, supra, is appropriate to the present case. Once Florian
and Genevieve were married, Genevieve retained a marital
interest in the home, which became a legal interest in the
property as conveyed by the 1983 deed from Florian and
John to Florian, John, and Genevieve as joint tenants with
rights of survivorship. The record in this case illustrates that
Florian was not attempting to divest Genevieve of her interest
in the property by conveying the property to an outside party
SzAWICkI v. SzAWICkI 	825
Cite as 17 Neb. App. 820

or debtor without her knowledge or consent, but that he was
conveying the property directly to her, just as in Furrow v.
Athey. Accordingly, the deed of conveyance from Florian and
John to Genevieve, signed and acknowledged by Florian and
John alone, is valid although not signed and acknowledged
by Genevieve.
We find that the district court erred in determining that the
1983 deed was void and that John owned the property in fee
simple absolute, and therefore, we reverse and vacate the dis-
trict court’s orders and remand the cause for further proceed-
ings. Having determined that the 1983 deed was not void for
lack of Genevieve’s acknowledgment, it follows that the 1986
deed filed by Genevieve conveying the deed to herself for the
purposes of severing the joint tenancy was valid. See, Neb.
Rev. Stat. § 76-118 (Reissue 2003); In re Estate of Potthoff,
273 Neb. 828, 733 N.W.2d 860 (2007) (existing estate in joint
tenancy can be destroyed by act of one joint tenant which is
inconsistent with joint tenancy and that such act has effect of
destroying right of survivorship incidental to it).
As a result of the severance, Genevieve and John hold the
property as tenants in common, and since joint title has been
established, partition may be had as a matter of law. See, Neb.
Rev. Stat. §§ 25-2170 and 25-2170.01 (Reissue 2008); Malcom
v. White, 210 Neb. 724, 316 N.W.2d 752 (1982). It is evident
from the record that the parties are not in agreement as to the
status of the property, and as such, John’s request contained in
his complaint for a judgment of partition should be granted by
the district court and a referee should be appointed for the sale
of the property and division of the proceeds.
Genevieve’s Affidavit.
[5] Genevieve contends that the district court erred in exclud-
ing paragraphs 3, 4, and 6 through 9 of her affidavit submitted
in conjunction with the motion for new trial; however, having
determined that the 1983 deed was valid, we need not address
this assignment of error. An appellate court is not obligated
to engage in an analysis which is not needed to adjudicate
the controversy before it. Papillion Rural Fire Prot. Dist.
v. City of Bellevue, 274 Neb. 214, 739 N.W.2d 162 (2007);
826 	17 NEbRASkA AppELLATE REpORTS

Sand Livestock Sys. v. Svoboda, 17 Neb. App. 28, 756 N.W.2d
299 (2008).
Cross-Appeal.
[6,7] John also argues various errors by the trial court in
a section of his brief entitled “Cross Appeal.” We will not
address the arguments set forth in that section, because John
has failed to properly set forth any assignment of error in his
cross-appeal. A party filing a cross-appeal must set forth a
separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant. See, Neb. Ct. R.
App. p. § 2-109(D)(4); Vokal v. Nebraska Acct. & Disclosure
Comm., 276 Neb. 988, 759 N.W.2d 75 (2009); In re Interest
of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439
(1999). Therefore, the cross-appeal section of a party’s brief
must set forth a separate title page, a table of contents, a state-
ment of the case, assigned errors, propositions of law, and a
statement of facts. See, § 2-109(D)(1); Vokal v. Nebraska Acct.
& Disclosure Comm., supra.
[8] As in Vokal v. Nebraska Acct. & Disclosure Comm.,
supra, John’s separate section entitled “Cross Appeal” contains
only argument, and the Nebraska Supreme Court has found time
and again that errors argued but not assigned will not be con-
sidered on appeal. See, also, Sturzenegger v. Father Flanagan’s
Boys’ Home, 276 Neb. 327, 754 N.W.2d 406 (2008); Malchow
v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).
CONCLUSION
In conclusion, we find that the district court erred in deter-
mining that the 1983 deed conveying the property to Genevieve
was void due to a lack of Genevieve’s signature and acknowl-
edgment. Therefore, we reverse and vacate the district court’s
orders and remand the cause for further proceedings consistent
with this opinion.
reversed And vAcAted, And cAuse remAnded
for further proceedinGs.
SzAWICkI v. SzAWICkI 	827
Cite as 17 Neb. App. 820