Roger Eugene Parker v. Beverly Maxine Parker
268 Neb. 187 (Neb. 06/25/2004)
Appellee Roger Parker and appellant Maxine Parker were married with three children, when they
divorced. Pursuant to their divorce decree, Roger was to pay $100 per month in child support
payments. Roger continued to make payments for three years. But then the payments stopped.
Beverly promptly filed a motion for judgment on the back child support, plus interest.
Roger then marries and divorces Lisa Parker. Despite his divorce from Lisa, Roger agrees to
co-sign on her new home. Roger and Lisa both appear on the warranty deed as joint tenants.
Thereafter, Roger conveyed his interest in their property to Lisa. Beverly claims this
transfer was fraudulent. Although the parties agree that by definition Beverly was a
“creditor” to Roger as “debtor”, the real issue becomes one of Roger’s intent at the time of
the transfer. The court held that Roger’s title was merely a legal title and therefore the
judgment lien didn’t attach to Roger’s limited interest in the property.
Roger Eugene Parker, appellee, v. Beverly Maxine Parker, now known as Beverly Maxine Washington,
appellant, and Lisa Parker, intervenor-appellee.
SUPREME COURT OF NEBRASKA
268 Neb. 187
June 25, 2004, Filed
PRIOR HISTORY: [*1] Appeal from the District Court for Douglas County: Sandra L. Dougherty, Judge.
COUNSEL: David L. Herzog, of Herzog & Herzog, P.C., for appellant.
Frank X. Haverkamp, of Penke & Haverkamp, for appellee Lisa Parker.
JUDGES: Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
OPINION: Gerrard, J. NATURE OF CASE
In February 1977, Roger Eugene Parker and Beverly Maxine Parker, now known as Beverly Maxine
Washington, were divorced. Pursuant to the divorce decree, Roger was ordered to pay $ 100 a month
in child support. After 3 years, Roger stopped making child support payments to Beverly. In
October 1977, Roger married Lisa Parker. In 1985, Roger and Lisa were divorced. In 1992, despite
their divorce, Roger cosigned a loan with Lisa in order to enable her to build a house. Both Roger
and Lisa appear on the warranty deed for the property as joint tenants. On January 28, 2000,
Beverly filed a motion for judgment on unpaid child support and accrued interest against Roger. On
February 2, per Lisa's request, Roger conveyed his interest in their jointly owned property to
Lisa by quitclaim deed. On February 7, Beverly filed the instant action seeking [*2] to set aside
this conveyance as a fraudulent transfer designed to impair her interests as a creditor of Roger.
The main question on appeal is whether Roger's conveyance to Lisa was a fraudulent transfer that
should be set aside.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to 1977, Roger and Beverly were married. The parties lived in Minnesota, and their marriage
produced three children. Roger and Beverly were divorced in Minnesota on February 3, 1977.
Pursuant to the divorce decree, Roger was ordered to pay $ 100 a month in child support. On
September 16, in an effort to enforce his visitation rights, Roger filed a petition for
registration of a foreign judgment in the district court for Douglas County, Nebraska.
On October 8, 1977, Roger married Lisa. On February 20, 1980, Roger and Lisa's sole child was
born. On September 30, 1985, Roger and Lisa were divorced in Minnesota. Neither child support nor
alimony was awarded in the divorce decree. Despite their divorce, both Roger and Lisa believed
that it was important to raise their child in a two-parent household. Therefore, they agreed to
continue to live together until their child reached adulthood. Although they lived in the same
[*3] house in their roles as father and mother, Roger and Lisa did not live as husband and wife.
For example, they stayed in separate bedrooms, maintained separate bank accounts, and filed
separate income tax returns.
In 1992, Lisa decided to build a house. Lisa applied for a loan to cover its costs, but was told
by a mortgage broker that her income was too low to qualify for the loan. Lisa turned to Roger for
help, and although he had not been involved in the decision to build the home, Roger agreed to
cosign the loan. Thereafter, the loan was approved, Lisa made the downpayment, and Roger and Lisa
closed on the property on June 8, 1992.
Both Roger's and Lisa's names appear on the warranty deed for the property as joint tenants with
rights of survivorship. In addition, the warranty deed, deed of trust, and disclosure statement
all refer to Roger and Lisa as husband and wife. Roger and Lisa, however, contend that throughout
the process of purchasing the property, they never claimed to be married, and that no one inquired
about their marital status. Moreover, both Roger and Lisa testified that after they moved into
their new home, their separate living arrangements continued.
Although [*4] Roger had cosigned the loan and the parties took title jointly, both Roger and Lisa
considered the property to be Lisa's personal possession. To this end, Lisa made all of the
mortgage payments and paid for needed repairs, improvements, and furnishings. Roger did, however,
pay for utilities and do some household chores, including yardwork.
On October 16, 1999, Roger and Lisa's child moved out. Approximately 2 weeks later, per the
parties' alleged agreement, Roger also moved out of the home.
On January 28, 2000, Beverly filed a motion for judgment on unpaid child support and accrued
interest against Roger. At the time of her motion, Beverly estimated that Roger owed $ 15,700 in
child support and an additional $ 22,240 in accrued interest. Shortly thereafter, Lisa asked Roger
to sign a quitclaim deed to the property. At the time she made this request, Lisa was aware that
Beverly was attempting to collect child support from Roger; however, Lisa testified that she did
not know Beverly was seeking payment from the equity in the property. In any event, Roger agreed
to Lisa's request, and on February 2, 2000, Roger signed a quitclaim deed granting his interest in
the property to Lisa. Roger [*5] testified he did so because he believed that he had no interest
in the property and he wanted to make sure it stayed with its rightful owner. Roger testified that
he was not paid anything when he signed the quitclaim deed.
On February 7, 2000, Beverly filed a motion seeking to vacate and set aside the conveyance from
Roger to Lisa. Essentially, Beverly alleged that the conveyance was an act to defraud her, a
creditor of Roger, in violation of the Uniform Fraudulent Transfer Act (UFTA), Neb. Rev. Stat. §
36-701 et seq. (Reissue 1998). Fearing the impairment of her property, Lisa filed a motion to
intervene on February 11. Lisa also requested that the child support lien that was attached to her
property be released. On February 17, Lisa's motion to intervene was granted; however, the court
did not rule on Lisa's request to have the child support lien on her property released.
On March 2, 2000, Beverly's motion for judgment on unpaid child support and accrued interest was
granted, and a judgment was entered against Roger in the amount of $ 27,420.99. Thereafter,
additional hearings were held in regard to Beverly's motion to vacate and set aside the quitclaim
On June 7, 2000, the district court entered an order overruling Beverly's motion to set aside the
conveyance. Essentially, the court concluded that there was not clear and convincing evidence that
the execution of the quitclaim deed was fraudulent within the meaning of the UFTA. In addition,
the court determined that Roger's interest in the property was mere legal title and that a
judgment lien does not attach to mere legal title where the equitable and beneficial interests lie
elsewhere. Therefore, because it found all the equitable and beneficial interests in the property
were with Lisa, the court concluded that Beverly did not establish that the quitclaim deed should
be set aside simply because Roger and Lisa purchased the property as joint tenants and a number of
the loan documents listed them as husband and wife. Finally, the court determined that even if
Roger's interest in the property was more than mere legal title, no lien against him existed at
the time he executed the quitclaim deed to Lisa because he had yet to be served with the summons
of the action seeking unpaid child support.
On June 9, 2000, Beverly filed a motion for new trial, alleging that the court committed [*7] 25
errors of fact and law. On June 16, the court overruled Beverly's motion, and on June 26, Beverly
filed her notice of appeal. On appeal, the Court of Appeals determined that no final order had
been entered because the district court's order failed to grant or deny the relief Lisa requested
in her petition to intervene, i.e., to release the child support lien on her property.
Accordingly, the Court of Appeals dismissed the appeal for lack of jurisdiction. Parker v. Parker,
10 Neb. App. 658, 636 N.W.2d 385 (2001).
On remand, Beverly filed a motion requesting leave to amend her motion to vacate and set aside the
conveyance. Beverly sought to allege that Roger and Lisa formed an association for the purpose of
holding the property and took certain fraudulent actions to defeat Beverly's claim. After the
court granted Beverly's motion to amend, Lisa filed an answer denying the new allegations.
Thereafter, a limited amount of additional evidence was adduced.
On May 6, 2002, the district court entered an order overruling Beverly's motion to set aside the
conveyance. In its order, the court repeated its findings from the June 9, 2000, order. In
addition, the court determined [*8] that because Beverly failed to establish fraud, her new
association-based claim, which was premised on the allegedly fraudulent transfer, must fail. The
court also stated its belief that the equities in the case simply did not support the relief
Beverly was requesting because she had recently obtained a judgment against Roger for $ 27,420.99
and Roger's wages were being garnished in connection with that decision. Last, the court ordered
that the child support lien on Lisa's property be released.
Thereafter, Beverly filed a motion for new trial, alleging that the court committed 28 errors of
law and fact. Beverly's motion for new trial was overruled, and Beverly filed a timely notice of
ASSIGNMENTS OF ERROR
On appeal, Beverly assigns, restated, that the district court erred in (1) failing to find that
Roger fraudulently transferred his interest in the property to Lisa, (2) failing to set aside
Roger's transfer of his interest in the property to Lisa, (3) failing to find that a lien existed
on the property prior to the execution of the quitclaim deed, (4) failing to grant her motion for
a new trial, (5) sustaining objections to evidence that she presented, (6) failing to find [*9]
that Roger and Lisa engaged in an association with which Roger had a legal and equitable interest
in the property, and (7) allowing Roger and Lisa to testify as to their agreement concerning the
ownership and rights in the property.
STANDARD OF REVIEW
[1, 2] An appeal of a district court's determination that a transfer of an asset was not in
violation of the UFTA is equitable in nature. Eli's, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543
(1999). In an appeal of an equity action, an appellate court tries factual questions de novo on
the record, reaching a conclusion independent of the findings of the trial court. Where credible
evidence is in conflict on a material issue of fact, the appellate court will consider and may
give weight to the fact that the trial judge heard and observed the witnesses and accepted one
version of the facts rather than another. Id.; Dillon Tire, Inc. v. Fifer, 256 Neb. 147, 589
N.W.2d 137 (1999).
 A motion for new trial is addressed to the discretion of the trial court, whose decision will
be upheld in the absence of an abuse of that discretion. Gangwish v. Gangwish, 267 Neb. 901, 678
N.W.2d 503 (2004). [*10]
On appeal, Beverly contends that the district court erred in determining that Roger's conveyance
to Lisa was not fraudulent under § 36-705, which provides, in relevant part:(a) A transfer made or
obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose
before or after the transfer was made or the obligation was incurred, if the debtor made the
transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor[.]Under the UFTA,
"transfer" means "every mode, direct or indirect, absolute or conditional, voluntary or
involuntary, of disposing of or parting with an asset or an interest in an asset, and includes
payment of money, release, lease, and creation of a lien or other encumbrance." § 36-702(12). A
"creditor" is "a person who has a claim," and a "debtor" is "a person who is liable on a claim." §
36-702(4) and (6). A "claim" is defined as "a right to payment, whether or not the right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured." § 36-702(3).
Pursuant [*11] to these definitions, it is obvious that Roger "transferred" property to Lisa when
he signed the quitclaim deed. Likewise, it is clear that at the time of the transfer, Beverly had
a "claim" against Roger for unpaid child support, and that therefore, Beverly was a "creditor" of
Roger and, conversely, Roger was a "debtor" of Beverly. Neither party disputes these conclusions.
Instead, the focus of this dispute is on Roger's intent at the time of the conveyance, and the
dispositive issue is whether Roger intended to defraud Beverly when he signed the quitclaim deed
In determining actual intent under the UFTA, § 36-705(b) instructs courts to consider whether:
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was disclosed or concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or
threatened with suit;
(5) the transfer was of substantially all the debtor's assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was [*12] reasonably equivalent to the
value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the
obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the
assets to an insider of the debtor. Although long, the aforementioned list of factors is not
exclusive; § 36-705(b) states that when determining actual intent, consideration may be given to
additional factors. Noting this, we have remained mindful of those factors the common law
considers to be indicia of fraud."'"The generally recognized badges of fraud are the lack of
consideration for the conveyance, the transfer of the debtor's entire estate, relationship between
transferor and the transferee, the pendency or threat of litigation, secrecy or hurried
transaction, insolvency or indebtedness of the transferor, departure from the usual method of
business, the retention by the debtor of possession of the property, and the reservation of
benefit to the transferor. [*13] . . ."'"Eli's, Inc. v. Lemen, 256 Neb. 515, 533, 591 N.W.2d 543,
555 (1999), quoting Schall v. Anderson's Implement, 240 Neb. 658, 484 N.W.2d 86 (1992). See, also,
Brown v. Borland, 230 Neb. 391, 432 N.W.2d 13 (1988).
[5,6] In an action seeking to set aside a fraudulent transfer, the burden of proof is on a
creditor to prove, by clear and convincing evidence, that fraud existed in a questioned
transaction. Eli's, Inc., supra; Dillon Tire, Inc. v. Fifer, 256 Neb. 147, 589 N.W.2d 137 (1999).
Clear and convincing evidence is that amount of evidence which produces in the trier of fact a
firm belief or conviction about the existence of a fact to be proved. Fales v. Norine, 263 Neb.
932, 644 N.W.2d 513 (2002).
Here, Beverly contends that she presented clear and convincing evidence that Roger's conveyance to
Lisa was fraudulent. Specifically, Beverly argues that Roger's intent to defraud her was
demonstrated by the following facts: (1) Before the transfer was made, Roger had been sued to
collect unpaid child support; (2) Roger received nothing of value for the transfer; (3) outside
[*14] of Roger's interest in the house, there were very limited assets from which Beverly could
seek to enforce the judgment; and (4) the transfer was to an insider, Lisa.
As an initial matter, we agree that the evidence establishes that Roger was sued prior to signing
the quitclaim deed. Likewise, it is clear that Roger received nothing of value in exchange for
signing the quitclaim deed. We conclude that this fact, however, is of limited importance because
both Roger and Lisa testified that Roger never made any financial contributions toward the
property and did not believe he owned the property. Therefore, it would have been odd for Roger to
have received more than a nominal payment for relinquishing his interest in property that he never
contributed any assets toward and did not believe he owned.
Next, to some extent, we agree that the record establishes Roger was without other property from
which Beverly could seek to enforce the judgment. For example, Roger testified that in addition to
owning no other real property, he had not invested in stocks, bonds, or broker accounts. This
badge of fraud is mitigated, however, by the fact that Roger was employed and, therefore, his
wages could [*15] easily be garnished to satisfy the judgment.
Furthermore, we do not agree that Roger transferred his property to an "insider." Under the UFTA,
an "insider" is "a relative of the debtor." § 36-702(7)(i)(A). Therefore, in order for Lisa to be
considered an insider, she must have been Roger's relative at the time of the transfer. Although
the UFTA does not state who qualifies as a "relative," it is commonly understood that a relative
is a person connected with another by blood or affinity. See, e.g., Black's Law Dictionary 1291
(7th ed. 1999) (relative is "[a] person connected with another by blood or affinity; a kinsman");
Webster's Third New International Dictionary, Unabridged 1916 (3d ed. 1993) (relative is "a person
connected with another by blood or affinity").
Consequently, because Roger and Lisa are not connected by blood and were not married at the time
Roger signed the quitclaim deed, Lisa was not Roger's relative at the time of the transfer. Cf.,
Ex Parte Wactor v. Wactor, 245 Miss. 132, 146 So. 2d 540 (1962); Robertson v. Aetna Cas. & Sur.
Ins. Co., 629 So. 2d 445 (La. App. 1993) (ex-wife is not her ex-husband's relative under
homeowner's [*16] insurance policy because she is not related by blood or marriage). Therefore,
Roger did not transfer property to an insider, and this badge of fraud does not exist.
Moreover, as the district court found, a number of additional badges of fraud are noticeably
absent from this case. For example, there was no evidence that (1) Roger was insolvent, (2) Roger
transferred substantially all of his assets, or (3) Roger retained possession or control of the
property after the transfer. Simply put, the evidence adduced at trial did not establish many of
the statutory and common-law badges of fraud. Instead, the evidence indicates that Beverly's suit
merely provided the impetus for Roger and Lisa to formalize their prior understanding concerning
the true ownership of the property.
In sum, based on our de novo review of the record, we conclude that Beverly did not establish by
clear and convincing evidence that Roger's conveyance to Lisa was fraudulent.
 On appeal, Beverly contends that any testimony by Roger or Lisa concerning their contention
that Roger neither had, nor was intended to have, an actual ownership interest in the property
should have been barred by the parol [*17] evidence rule. The parol evidence rule renders
ineffective proof of a prior or contemporaneous oral agreement which alters, varies, or
contradicts the terms of a written agreement. In re Trust Created by Cease, 267 Neb. 753, 677
N.W.2d 495 (2004).
 As an initial matter, we note that Beverly did not make a single parol evidence objection
during Roger's testimony. Therefore, with regard to Roger's testimony, Beverly waived her right to
assert prejudicial error on appeal. See Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).
Additionally, during Lisa's testimony, Beverly made only two parol evidence objections. Therefore,
Beverly waived her right to contest the overwhelming majority of Lisa's testimony, including
numerous statements concerning her contention that Roger did not, nor was he intended to, have an
actual interest in the property. See id.
As to the objections Beverly did make, we conclude that the district court did not err in
overruling them. Beverly first objected when Lisa's attorney asked Lisa if she signed the loan
documents as an individual. The district court sustained Beverly's objection. The court did allow,
however, limited [*18] inquiry concerning whether the loan documents contained certain notations
that indicated that Roger and Lisa were signing the documents as husband and wife. It was in this
regard that Beverly made a continuing parol evidence objection to Lisa's subsequent testimony that
the signature lines in a number of the loan documents were not near notations that signified that
Roger and Lisa were signing the documents as husband and wife. Beverly's other parol evidence
objection was in regard to Lisa's testimony that her tax returns showed that she was the head of
We note that in both instances, Lisa testified only to what the documents actually said.
Consequently, Lisa's testimony did not alter, vary, or contradict the terms of the loan documents.
Therefore, Lisa's testimony did not violate the parol evidence rule, and the district court did
not err in overruling Beverly's objections on that basis.
Mere Legal Title
Next, Beverly argues that the district court erred in failing to find that a lien on the property
existed prior to the time the quitclaim deed was executed. According to Beverly, under Neb. Rev.
Stat. § 25-1504 (Reissue 1995), a judgment [*19] lien attaches to the land of a debtor the day the
judgment is rendered. Therefore, because Roger was in arrears on his child support obligation,
Beverly contends that a judgment lien attached to Roger's interest in the property on June 12,
1992, the date the deed of trust was recorded in Douglas County.
 As the district court noted, however, a lien of judgment does not attach to the mere legal
title where the equitable and beneficial interest is in another. Action Realty Co., Inc. v.
Miller, 191 Neb. 381, 215 N.W.2d 629 (1974); Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927). In
such a situation, equity allows a court to break free from the normal chains of legal title and
disregard a lienholder's claim to the interest of a debtor who holds mere legal title.
In the instant case, based on our de novo review, we conclude that the record is replete with
evidence which establishes that Roger's interest in the property was that of mere legal title and
that all the equitable and beneficial interests in the property resided with Lisa. For example,
both Roger and Lisa testified that it was Lisa who wished to construct the house and that it was
only [*20] after Lisa was refused financing that she turned to Roger. Although Roger cosigned the
loan, both parties agreed that Lisa made the downpayment for the property, as well as all of the
subsequent mortgage payments. Lisa also paid for the needed repairs and improvements to the home,
in addition to paying for the furnishings for the home. Furthermore, Lisa testified that she was
the sole decisionmaker when it came to the property and believed she could have sold it without
Roger's approval. Likewise, Roger testified that he did not believe that he owned the property.
Although Beverly makes much of the fact that the warranty deed and a few of the loan documents
contain references to Roger and Lisa as husband and wife, both Roger and Lisa testified that (1)
they never conveyed this information to their financing agent, (2) their financing agent never
asked about their marital status, and (3) they signed the documents in a hurried manner without
closely reading them. Furthermore, both Roger and Lisa testified that after their divorce, they
continued to live together only because they believed it was in their child's best interests. By
leaving Lisa's home shortly after his child's departure [*21] (and before the initiation of
Beverly's suit), Roger demonstrated that he did not consider the property to be his own.
In sum, the evidence revealed that Roger's interest in the property was that of mere legal title
and that all the equitable and beneficial interests in the property resided with Lisa. Therefore,
the district court correctly concluded that Beverly's judgment lien did not attach to Roger's
limited interest in the property.
Roger and Lisa as Association
Beverly also contends that the district court erred in failing to determine that Roger and Lisa
formed an association for the purpose of holding property under Neb. Rev. Stat. § 25-313 (Reissue
1995) and then used that association to perpetrate a fraud upon her. The district court determined
that because Beverly failed to establish that Roger's conveyance to Lisa was fraudulent under the
UFTA, her association claim was without merit. We agree. As noted above, based on our de novo
review of the record, Beverly failed to establish that Roger's conveyance to Lisa was fraudulent.
Consequently, her association-based theory of recovery, which is premised on the allegedly
fraudulent conveyance, must [*22] also fail.
Testimony of Lawyer
On remand from the Court of Appeals, Beverly called a local lawyer to testify about the
significance that the police would attach to Roger and Lisa's living situation. Lisa objected on
the ground that the police, and not a lawyer, should be called to testify as to what the police
will do in a given situation. The objection was sustained, and Beverly made an offer of proof.
Essentially, the lawyer would have testified that when seeking to obtain a search warrant, the
police will often submit utility and land title records to the judicial officer as evidence that
the person has a legal interest in the property discussed in the records. Therefore, according to
the lawyer, because Roger's name was on the warranty deed and Roger paid utilities for the home,
the police would have concluded that Roger had a legal interest in the property.
 On appeal, Beverly contends that the district court erred in sustaining Lisa's objection to
the lawyer's testimony. Without passing on the correctness of the district court's ruling, we
conclude that Beverly was not prejudiced by the exclusion of this evidence because substantially
similar evidence was admitted without [*23] objection. See Crete Ed. Assn. v. Saline Cty. Sch.
Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002) (improper exclusion of evidence is ordinarily
not prejudicial where substantially similar evidence is admitted without objection).
The record illustrates that prior to Lisa's objection and Beverly's offer of proof, the lawyer was
allowed to testify, without objection, that (1) in anticipation of getting a search warrant to
search a home, the police look to see who has a legal interest in the property; (2) the police
examine land records and utility records to determine who has a legal interest in the property;
and (3) land records and utility records are often included in the affidavit upon which the
application for a search warrant is based. In addition, evidence had already been presented that
(1) Roger's name was on the warranty deed to the property and (2) Roger paid the utilities for the
home in which he and Lisa lived.
Therefore, prior to Lisa's objection, the court had already been presented with evidence from
which it could determine that if the police sought to search the house where Roger lived, they
would conclude, based on title and utility records, [*24] that Roger had a legal interest in the
home. Consequently, no prejudice has befallen Beverly because the lawyer, if he had been allowed
to testify further, would have simply emphasized and restated what was already before the court.
For each of the foregoing reasons, Beverly's assignments of error are without merit. The judgment
of the district court is affirmed.