J.M. v. Hobbs

simply does not support DHHS’ argument. Liddell-Toney’s evi-
dence established that her condition was disabling and that her
prognoses for rehabilitation and recovery were poor. There is
no reasonable interpretation of the record under which Liddell-
Toney did not establish that her condition “prevents [her] from
entering employment” and “is expected to exist for a contin-
uous period exceeding three months.”12
ConCLuSion
The district court erred when it affirmed DHHS’ determina-
tion that Liddell-Toney did not qualify for an exemption from
participating in the Employment First program. The evidence
clearly indicates that Liddell-Toney’s impairment prevents her
from entering employment for a period exceeding 3 months,
if at all, and she therefore qualifies for an exemption to the
Employment First program under § 020.02(2)(b). The judgment
of the district court is reversed, and the cause remanded with
directions to reverse the determination made by DHHS.
R eveRsed and Remanded with diRections.
connolly, J., participating on briefs.
wRight, J., not participating.
12 See § 020.02(2)(b).
J.m. v. HobbS 	539
Cite as 281 neb. 539
J.m., as guaRdian and conseRvatoR foR his minoR child,
c.m., appellant, v. Billy l. hoBBs , appellee .
797 n.W.2d 227
Filed may 13, 2011. 	no. S-10-600.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, which an appellate court resolves independently of the trial court.
2. Statutes. Absent a statutory indication to the contrary, words in a statute will be
given their ordinary meaning.
3. ____. Where general and special provisions of statutes are in conflict, the gen-
eral law yields to the special, without regard to priority of dates in enacting
the same.
Appeal from the District Court for Lancaster County: paul
d. meRRitt, JR., Judge. Affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

Victor E. Covalt iii and John W. ballew, Jr., of ballew
Covalt, P.C., L.L.o., for appellant.
Dana m. London for appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
geRRaRd, J.
nebraska law provides that a court may order any property
of a judgment debtor, not exempted by law, in the hands of
either the debtor or any other person or corporation, or due to
the debtor, to be applied toward the satisfaction of the judg-
ment.1 but the nebraska State Patrol Retirement Act (the Act)2
provides, as relevant, that annuities or benefits “which any per-
son shall be entitled to receive under” the Act are not subject
to garnishment, attachment, levy, or any other process of law.3
The question presented in this case is whether a plaintiff who
wins a civil judgment against a former state trooper can obtain
an order in aid of execution against the trooper’s State Patrol
retirement benefits.
bACkgRounD
The plaintiff in this case, J.m., is the guardian and conserva-
tor for his minor child, C.m. in 1999, when C.m. was 7 years
old, her mother married the defendant, billy L. Hobbs. C.m.
lived with her mother and Hobbs. Hobbs sexually assaulted
C.m. while she was between 12 and 14 years old. in 2006,
Hobbs was convicted of first degree sexual assault of a child
and sentenced to 25 to 30 years’ imprisonment. And J.m. sued
Hobbs on C.m.’s behalf and won a judgment of $325,000.
J.m. filed a motion for an order in aid of execution, alleging
that Hobbs was a judgment creditor and, although incarcerated,
was receiving a retirement pension from the State Patrol. J.m.
requested that Hobbs be asked to pay all nonexempt prop-
erty and funds that came into his hands on a recurring basis
1 neb. Rev. Stat. § 25-1572 (Reissue 2008).
2 neb. Rev. Stat. §§ 81-2014 to 81-2041 (Reissue 2008).
3 § 81-2032.
540 	281 nEbRASkA REPoRTS

toward satisfaction of the judgment. J.m. also moved for the
appointment of a receiver to take control of Hobbs’ assets in
the event that Hobbs did not comply. Hobbs objected, alleg-
ing that his State Patrol retirement benefits were exempt from
execution and that the order sought by J.m. would effectively
subject his retirement benefits to process of law in violation of
§ 81-2032. The district court agreed and denied J.m.’s motion.
J.m. appealed, and we granted his petition to bypass the
nebraska Court of Appeals.
ASSignmEnTS oF ERRoR
J.m. assigns that the district court erred in (1) finding that
Hobbs’ pension benefits are exempt from his collection efforts,
(2) denying his motion for an order in aid of execution, and (3)
failing to appoint a receiver.
STAnDARD oF REViEW
[1] The meaning of a statute is a question of law, which an
appellate court resolves independently of the trial court.4
AnALySiS
As noted above, § 25-1572 provides that in aid of execution
of a judgment, a court “may order any property of the judgment
debtor, not exempt by law, in the hands of either himself or any
other person or corporation, or due to the judgment debtor,
to be applied towards the satisfaction of the judgment.” The
question in this case is whether Hobbs’ State Patrol retirement
funds are “exempt by law.” J.m. argues that the applicable stat-
ute here is neb. Rev. Stat. § 25-1563.01 (Reissue 2008), which
provides as relevant that “an interest held under a stock bonus,
pension, profit-sharing, or similar plan or contract payable on
account of illness, disability, death, age, or length of service” is
generally exempt from process “[t]o the extent reasonably nec-
essary for the support of the debtor and any dependent of the
debtor.” J.m. argues that because Hobbs is imprisoned, he does
not need his retirement funds for support, so they are available
to satisfy C.m.’s judgment.
4 Ricks v. Vap, 280 neb. 130, 784 n.W.2d 432 (2010).
J.m. v. HobbS 	541
Cite as 281 neb. 539

but Hobbs relies on § 81-2032, which provides:
All annuities or benefits which any person shall be
entitled to receive under [the Act] shall not be subject
to garnishment, attachment, levy, the operation of bank-
ruptcy or insolvency laws, or any other process of law
whatsoever and shall not be assignable except to the
extent that such annuities or benefits are subject to a quali-
fied domestic relations order under the Spousal Pension
Rights Act.[5]
Hobbs contends that this provision creates a legal exemption
from execution for the funds he receives under the Act. We
agree with the district court that § 81-2032 precludes J.m. from
obtaining the relief requested in this proceeding.
J.m. attempts to draw a distinction between the funds that
Hobbs “shall be entitled to receive,” as specified by § 81-2032,
and the funds that Hobbs already has received and which are
in his possession. J.m. contends that the words “annuities” and
“benefits” in § 81-2032 refer to a right to payment, not to the
payment or proceeds themselves. So, J.m. claims, § 81-2032
is actually intended not to protect the money received by a
beneficiary of the Act, but simply to protect the nebraska
State Patrol Retirement System from having to deal with
the administrative burdens of execution and garnishment. but
J.m.’s argument is inconsistent with the language of the Act
and the weight of authority applying similar anti-attachment
provisions.
[2] To begin with, we have often said that absent a statu-
tory indication to the contrary, words in a statute will be given
their ordinary meaning.6 The words “annuity” and “benefit” are
often used to refer, respectively, to “[a] fixed sum of money
payable periodically”7 and “a cash payment or service pro-
vided for under an annuity, pension plan, or insurance policy.”8
And those ordinary meanings for “annuity” and “benefit” are
5 neb. Rev. Stat. §§ 42-1101 to 42-1113 (Reissue 2008).
6 In re Estate of Fries, 279 neb. 887, 782 n.W.2d 596 (2010).
7 black’s Law Dictionary 105 (9th ed. 2009).
8 Webster’s Third new international Dictionary of the English Language,
unabridged 204 (1981).
542 	281 nEbRASkA REPoRTS

clearly how the terms are used in the Act. For example, the Act
describes the authority of the Public Employees Retirement
board to “require repayment of benefits paid” or “offset future
benefit payments” in the event of “an overpayment of a bene-
fit,” and to compensate a beneficiary in the event of “an under-
payment of a benefit.”9 And the Act explains how an officer
who has reached retirement age or is disabled is entitled to
receive “a monthly annuity” for the remainder of his or her
life or disability.10 There is simply no merit to J.m.’s argument
that “annuities” and “benefits” in § 81-2032 refer to something
other than payments of money.
nor are we persuaded that § 81-2032 no longer applies when
the money is paid to the beneficiary. The language of § 81-2032
mirrors that of anti-attachment provisions that generally have
been held to protect benefits such as those provided under the
Act from being used by judgment creditors to satisfy private
obligations.11 J.m. argues that the statutes at issue in those cases
are distinguishable, because they contained express language
that more clearly applies to, for instance, money “‘either before
or after receipt by the beneficiary.’”12 but this distinction has
been consistently rejected by courts discussing statutes, such as
§ 81-2032, that do not contain such language.13 The language of
9 See § 81-2019.01(1).
10 See § 81-2026(1)(a). Accord § 81-2026(2).
11 See, generally, In re Interest of Battiato, 259 neb. 829, 613 n.W.2d 12
(2000); Boersma v. Karnes, 227 neb. 329, 417 n.W.2d 341 (1988). See,
e.g., Bennett v. Arkansas, 485 u.S. 395, 108 S. Ct. 1204, 99 L. Ed. 2d 455
(1988); Philpott v. Essex County Welfare Board, 409 u.S. 413, 93 S. Ct.
590, 34 L. Ed. 2d 608 (1973); Porter v. Aetna Casualty Co., 370 u.S. 159,
82 S. Ct. 1231, 8 L. Ed. 2d 407 (1962).
12 See, e.g., Bennett, supra note 11, 485 u.S. at 397. Accord Porter, supra
note 11.
13 See, Tom v. First American Credit Union, 151 F.3d 1289 (10th Cir. 1998);
Broward v. Jacksonville Medical Center, 690 So. 2d 589 (Fla. 1997);
Waggoner v. Game Sales Co., 288 Ark. 179, 702 S.W.2d 808 (1986);
Surace v. Danna, 248 n.y. 18, 161 n.E. 315 (1928); State ex rel. Nixon
v. McClure, 969 S.W.2d 801 (mo. App. 1998); Sears, Roebuck and Co. v.
Harris, 854 P.2d 921 (okla. App. 1993). Cf. Hisquierdo v. Hisquierdo, 439
u.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979).
J.m. v. HobbS 	543
Cite as 281 neb. 539

§ 81-2032 is still clearly intended to protect benefits under the
Act from legal process.14
As 	Chief 	Justice 	Cardozo 	explained, 	when 	addressing
whether payments “‘due’” were limited to compensation owing
and unpaid, “‘due,’ like words generally . . . , has a color and a
content that can vary with the setting. Compensation due under
an act may be a payment presently owing, or one to become
due in the future, or one already made, but made because
due, i. e., required or commanded.”15 And the 10th Circuit,
in addressing a provision of the Civil Service Retirement Act
that exempted only “money mentioned by this subchapter,”16
concluded that although the statutory language was “not as
precisely drafted”17 as the provision of the Social Security Act
that the u.S. Supreme Court had previously addressed,18 “the
broad language of [the statute] offers no hint that its protec-
tions are any narrower than those afforded to Social Security
payments or that Congress intended to treat future payments
any differently than payments already received.”19 Accordingly,
the 10th Circuit concluded that the same protection extended to
payments that had already been received.20
The same is true here. Although we recognize that the
result may often seem inequitable, courts have held that anti-
attachment provisions are to be given effect even where a
creditor is attempting to collect restitution for a criminal act, or
a tort judgment.21 As the kansas Supreme Court said, in a case
involving strikingly similar facts:
14 See Harris, supra note 13.
15 Surace, supra note 13, 248 n.y. at 21, 161 n.E. at 316.
16 See 5 u.S.C. § 8346(a) (2006).
17 Tom, supra note 13, 151 F.3d at 1293.
18 See Philpott, supra note 11.
19 Tom, supra note 13, 151 F.3d at 1293-94.
20 See id.
21 See, Guidry v. Sheet Metal Workers Pension Fund, 493 u.S. 365, 110 S.
Ct. 680, 107 L. Ed. 2d 782 (1990) (superseded by statute as stated in U.S.
v. Irving, 452 F.3d 110 (2d Cir. 2006)); Higgins v. Beyer, 293 F.3d 683
(3d Cir. 2002); E.W. v. Hall, 260 kan. 99, 917 P.2d 854 (1996); Younger v.
Mitchell, 245 kan. 204, 777 P.2d 789 (1989).
544 	281 nEbRASkA REPoRTS

if we were free to decide the case on public policy or
equitable consideration, there could be no strong reason
asserted for not permitting the attachment. The language
of the relevant federal statutes and the united States
Supreme Court decision make it clear that we do not have
the luxury of deciding the case on the basis of what is the
“right” or desirable result. Plaintiff herein is a judgment
creditor. . . . We find no legal basis for holding the funds
are not exempt due to some implied exception.22
And as the u.S. Supreme Court has more generally explained,
it is not appropriate for a court to approve any generalized
equitable exception to an antigarnishment provision, even for
criminal misconduct, despite a “natural distaste for the result.”23
An antigarnishment provision
reflects a considered congressional policy choice, a deci-
sion to safeguard a stream of income for pensioners (and
their dependents, who may be, and perhaps usually are,
blameless), even if that decision prevents others from
securing relief for the wrongs done them. if exceptions to
this policy are to be made, it is for Congress to undertake
that task.
As a general matter, courts should be loath to announce
equitable exceptions to legislative requirements or pro-
hibitions that are unqualified by the statutory text. The
creation of such exceptions, in our view, would be espe-
cially problematic in the context of an antigarnishment
provision. Such a provision acts, by definition, to hinder
the collection of a lawful debt. A restriction on garnish-
ment therefore can be defended only on the view that the
effectuation of certain broad social policies sometimes
takes precedence over the desire to do equity between
particular parties. it makes little sense to adopt such a
policy and then to refuse enforcement whenever enforce-
ment appears inequitable. A court attempting to carve
out an exception that would not swallow the rule would
be forced to determine whether application of the rule
22 E.W., supra note 21, 260 kan. at 104, 917 P.2d at 858.
23 See Guidry, supra note 21, 493 u.S. at 377.
J.m. v. HobbS 	545
Cite as 281 neb. 539

in particular circumstances would be “especially” inequi-
table. The impracticability of defining such a standard
reinforces our conclusion that the identification of any
exception should be left to Congress.24
[3] We agree with the Court’s reasoning, and we likewise
find that if an exception to § 81-2032 is to be created for cir-
cumstances such as these, it is a matter for the Legislature to
undertake. but as it stands, § 81-2032 clearly provides greater
protection to benefits under the Act than does the general pen-
sion exemption set forth in § 25-1563.01. And it is well estab-
lished that where general and special provisions of statutes
are in conflict, the general law yields to the special, without
regard to priority of dates in enacting the same.25 The district
court was correct in relying upon this principle to conclude
that Hobbs’ retirement benefits, even in his possession, are
exempted from execution by § 81-2032.
This conclusion disposes of J.m.’s first assignment of error.
J.m. seems to suggest, in support of his remaining assignments
of error, that the court should nonetheless have ordered Hobbs
to pay the judgment and appointed a receiver to take control
of Hobbs’ assets.26 Although J.m. implies that the court’s con-
tempt power could be used to force Hobbs to pay, the use of a
court’s contempt power to compel payment from assets that are
protected by an anti-assignment provision is limited to narrow
exceptions that are not applicable here.27 Simply put, we do not
read these arguments as providing any basis for superseding
the exemption provided by § 81-2032; nor has J.m. alleged that
any assets other than Hobbs’ retirement benefits are at issue.
Therefore, we also find no merit to J.m.’s remaining assign-
ments of error.
For the sake of completeness, we note that Hobbs could,
obviously, voluntarily pay his retirement funds toward C.m.’s
24 Id. at 376-77.
25 Sack v. Castillo, 278 neb. 156, 768 n.W.2d 429 (2009). See, also, Guidry,
supra note 21.
26 See § 25-1572 and neb. Rev. Stat. § 25-1573 (Reissue 2008).
27 See, Bennett, supra note 11; Rose v. Rose, 481 u.S. 619, 107 S. Ct. 2029,
95 L. Ed. 2d 599 (1987); Younger, supra note 21.
546 	281 nEbRASkA REPoRTS

judgment if he chose to do so28 and that his willingness (or
unwillingness) to do so could be seen as relevant to many of
the factors that the board of Parole is instructed to take into
account when making a determination regarding a committed
offender’s release on parole.29 We also note that although this
opinion addresses the general applicability of § 81-2032, we
make no comment on the extent to which the exempt status
of Hobbs’ retirement funds might be affected by any transfor-
mation in their character, such as through spending or invest-
ment.30 And, as suggested above, nothing in this opinion should
be construed to comment on whether the Legislature, if it chose
to do so, could amend the scope of § 81-2032.
ConCLuSion
The district court correctly concluded that § 81-2032 fore-
closed the relief J.m. sought in this proceeding. The court’s
judgment is affirmed.
affiRmed.
wRight, J., not participating.
28 See In re Interest of Battiato, supra note 11.
29 See neb. Rev. Stat. § 83-1,114 (Reissue 2008).
30 See, e.g., Porter, supra note 11; Trotter v. Tennessee, 290 u.S. 354, 54
S. Ct. 138, 78 L. Ed. 358 (1933); In re Smith, 242 b.R. 427 (E.D. Tenn.
1999); E.W., supra note 21; Younger, supra note 21.
STATE on bEHALF oF mARTinEz v. mARTinEz-ibARRA 	547
Cite as 281 neb. 547
state of neBRaska on Behalf of vanessa i. maRtinez
mayoRga , appellant, v. wilBeRth maRtinez-iBaRRa ,
defendant and thiRd -paRty plaintiff, and
patRicia R. mayoRga , thiRd -paRty
defendant, appellees.
797 n.W.2d 222
Filed may 13, 2011. 	no. S-10-750.
1. Child Support: Child Custody: Appeal and Error. As it does with child sup-
port and child custody determinations, the nebraska Supreme Court reviews the
award of cash medical support de novo on the record, with the decision of the
trial court affirmed in the absence of an abuse of discretion.