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Florence Lake Investments, LLC, appellant, 

v. Jason Berg and Mary Berg, appellees, 

David M. Kroeger, intervenor-appellee, 

and Merrill Lynch, Pierce, Fenner & 

Smith, Incorporated, and Zoetis, 

Inc., garnishees-appellees.

___ N.W.2d ___

Filed August 12, 2022. No. S-21-350.

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not 

involve a factual dispute is determined by an appellate court as a matter 

of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

3. Garnishment: Appeal and Error. Garnishment is a legal proceeding. 

To the extent factual issues are involved, the findings of the fact finder 

will not be set aside on appeal unless clearly wrong; however, to the 

extent issues of law are presented, an appellate court has an obligation to 

reach independent conclusions irrespective of the determinations made 

by the court below.

4. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a 

judicial tribunal by either acquiescence or consent, nor may subject 

matter jurisdiction be created by waiver, estoppel, consent, or conduct 

of the parties.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

6. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, the party must be appealing from a 

final order or a judgment.

7. Judgments: Final Orders: Words and Phrases. A judgment is the 

final determination of the rights of the parties in an action.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/07/2022 09:05 AM CDT
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8. Judgments: Words and Phrases. Every direction of the court made or 

entered in writing and not included in a judgment is an order.

9. Judgments: Final Orders: Statutes: Appeal and Error. While all 

judgments not incorrectly designated as such are appealable, an order 

may be appealed only if a statute expressly makes the order immediately appealable or the order falls within the statutory definition of a 

final order.

10. Final Orders: Appeal and Error. To be a final order subject to appellate review, the lower court’s order must (1) affect a substantial right 

and determine the action and prevent a judgment, (2) affect a substantial 

right and be made during a special proceeding, (3) affect a substantial 

right and be made on summary application in an action after a judgment 

is entered, or (4) deny a motion for summary judgment which was based 

on the assertion of sovereign immunity or the immunity of a government official.

11. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum. 

Supp. 2020) include those legal rights that a party is entitled to enforce 

or defend.

12. Judgments: Final Orders: Garnishment: Liability. An order overruling an application to determine garnishee liability in a postjudgment 

garnishment proceeding is an order affecting a substantial right made on 

a summary application in an action after a judgment is entered.

13. Judgments. A summary application in an action after judgment is an 

order ruling on a postjudgment motion in an action.

14. Judgments: Final Orders: Garnishment: Liability. A court’s order 

overruling an application to determine garnishee liability affects a garnishor’s substantial rights, because it undermines a garnishor’s ability to 

satisfy its judgment against a judgment debtor.

15. Statutes: Legislature: Intent. When construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

16. Statutes: Courts. A court must reconcile different provisions of the 

statute so they are consistent, harmonious, and sensible.

17. Statutes: Intent. In construing a statute, the court must look at the 

statutory objective to be accomplished, the problem to be remedied, 

or the purpose to be served, and then place on the statute a reasonable 

construction which best achieves the purpose of the statute, rather than 

a construction defeating the statutory purpose.

18. Judgments: Debtors and Creditors: Garnishment: Property.

Generally, executions and garnishments in aid of executions are mechanisms by which a judgment creditor can seek judicial enforcement of 
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a monetary judgment—usually by seizing and selling the judgment 

debtor’s property.

19. Final Orders: Garnishment: Property. Neb. Rev. Stat. § 25-1315 

(Reissue 2016) is inapplicable to a final order regarding a postjudgment 

garnishment in aid of execution directed to specific property where all 

rights of all parties claiming an interest in the specific property garnished have been adjudicated.

20. Garnishment: Liability: Service of Process: Time. A garnishee’s 

liability is to be determined as of the time the garnishment summons 

is served.

21. Judgments: Debtors and Creditors: Garnishment. The claim of a 

judgment creditor garnishor against a garnishee can rise no higher than 

the claim of the garnishor’s judgment debtor against the garnishee.

22. Judgments: Debtors and Creditors: Garnishment: Subrogation. A 

garnishor is subrogated to the rights of the judgment debtor and can 

recover only by the same right and to the same extent that the judgment 

debtor might recover from the garnishee.

23. Garnishment: Liability: Service of Process: Time. In determining 

the liability of a garnishee to a garnishor, the test is whether, as of the 

time the summons in garnishment was served, the facts would support a 

recovery by the garnishor’s judgment debtor against the garnishee.

24. Federal Acts: Pensions. The Employee Retirement Income Security Act 

of 1974 provides a uniform and systematic framework for regulation of 

employee benefit plans to ensure that the employee’s accrued benefits 

are actually available for retirement purposes.

25. Federal Acts: Pensions: Debtors and Creditors. The Employee 

Retirement Income Security Act of 1974 utilizes an anti-alienation statute to bar creditors from collecting undistributed funds in an employee 

benefit plan.

26. Federal Acts: Pensions: Garnishment. The restrictions of the Employee 

Retirement Income Security Act of 1974 on assignment or alienation of 

pension benefits apply to garnishment.

27. Constitutional Law: Statutes. Federal preemption arises from the 

Supremacy Clause of the U.S. Constitution and is the concept that state 

laws that conflict with federal law are invalid.

28. Federal Acts: Pensions: Garnishment: Statutes. The anti-alienation 

statute of the Employee Retirement Income Security Act of 1974 preempts conflicting state garnishment laws.

29. Federal Acts: Pensions: Garnishment: Liability. The Employee 

Retirement Income Security Act of 1974 does not preempt a garnishee, 

acting as a plan administrator, from being found liable under Neb. Rev. 

Stat. § 25-1030.02 (Reissue 2016).
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30. Debtors and Creditors: Garnishment. It is an invariable rule that 

under no circumstances shall the garnishee, by operation of the proceedings against him or her, be placed in a worse condition than the garnishee would be in if the judgment debtor’s claim against the garnishee 

were enforced by the judgment debtor himself or herself.

31. Judgments: Appeal and Error. An appellate court may affirm a lower 

court’s ruling that reaches the correct result, albeit based on different reasoning.

Appeal from the District Court for Lancaster County: Robert 

R. Otte, Judge. Affirmed.

John F. Zimmer V and Andre R. Barry, of Cline, Williams, 

Wright, Johnson & Oldfather, L.L.P., for appellant.

Kenneth M. Wentz III and Caitlin J. Ellis, of Jackson Lewis, 

P.C., for garnishee-appellee Zoetis, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Freudenberg, JJ., and Derr, District Judge.

Cassel, J.

I. INTRODUCTION

A garnishor appeals from an order overruling its application 

to determine garnishee liability against a plan administrator 

whose interrogatory answers failed to disclose a judgment debtor’s 401K account. The central issue is whether the Employee 

Retirement Income Security Act of 1974 (ERISA) 1—particularly, ERISA’s anti-alienation statute 2—shields the administrator from state garnishment law liability. Because we conclude 

that it does under the circumstances here, we affirm.

II. BACKGROUND

Florence Lake Investments, LLC (Florence), obtained a 

judgment against Jason Berg (Berg) and his wife, Mary Berg 

1 29 U.S.C. § 1001 et seq. (2018 & Supp. I 2019). See, also, Pub. L. 

No. 117-58, § 80602, 135 Stat. 1339 (amending §§ 1021(f)(2)(D) and 

1083(h)(2)(C)(iv)).

2 See § 1056(d)(1).
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(Mary). The judgment totaled over $4 million with postjudgment interest continuing to accrue.

Florence’s collection efforts employed numerous postjudgment proceedings for garnishment or execution. We summarize 

only those events, parties, and filings pertinent to the instant 

appeal. Many are pertinent only to the discussion of our jurisdiction. We address the merits only as to a single postjudgment 

garnishment.

1. Florence’s Collection Proceedings

In attempting to collect the judgment against property that 

was not subject to Berg’s bankruptcy proceeding, Florence 

utilized two methods: (1) postjudgment garnishments of Berg’s 

wages and financial accounts and (2) executions against Berg 

and Mary’s personal property. These efforts occurred more or 

less contemporaneously.

Although the timing of the answers to garnishment interrogatories was pertinent to issues before the district court, no error 

is assigned regarding the court’s resolution of timing issues. 

Thus, we omit unnecessary dates.

(a) Garnishments

Florence sought to garnish Berg’s wages and financial 

accounts. Florence’s primary target was Berg’s 401K account, 

which totaled over $1 million.

Florence first served Merrill Lynch, Pierce, Fenner & Smith, 

Incorporated (Merrill Lynch), with garnishment interrogatories, believing that it administered the 401K account. Merrill 

Lynch answered the garnishment interrogatories against it by 

disclosing that the 401K account was exclusively managed by 

Zoetis, Inc. (Zoetis), as plan administrator. The disposition of 

the garnishment against Merrill Lynch was not appealed.

After receiving Merrill Lynch’s answers, Florence served 

garnishment interrogatories on “[Zoetis] as 401[K] Plan 

Administrator.” The interrogatories required Zoetis to disclose wages owed to a judgment debtor, if any, and “property belonging to the judgment debtor, or credits or monies 
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owed to the judgment debtor, whether due or not, other than 

[wages].” Additionally, the summons attached to the interrogatories stated in part, “You [Zoetis] are obligated to hold 

the property and credits of every description of [Berg] now 

in your possession or under your control until further order of 

this court . . . . You are required by law to answer the attached 

Interrogatories . . . . Penalties may be imposed in the event of 

willful falsification.”

In Zoetis’ answers to the garnishment interrogatories, it 

stated that it owed Berg wages as his employer, but that it did 

not possess any property belonging to him or owe him any 

other credits or monies. In other words, Zoetis did not disclose 

its role regarding Berg’s 401K account.

Unsatisfied with Zoetis’ answer regarding the 401K account, 

Florence filed an application to determine garnishee liability 

against Zoetis under Neb. Rev. Stat. § 25-1030 (Reissue 2016). 

Florence alleged that “[Zoetis’] response identifie[d] wages 

owed to [Berg] but [did] not identify any other property or 

address the existence of any account funds of [Berg] under 

[Zoetis’] control as Plan Administrator.” At the corresponding 

hearing, Zoetis explained it did not believe it needed to disclose Berg’s 401K account, because the account was protected 

from garnishment under ERISA.

After an extended period of study, the court issued a written order, “overrul[ing]” Florence’s application to determine 

garnishee liability against Zoetis. The court found that even 

though Zoetis had failed to strictly comply with the garnishment statutes by not disclosing Berg’s 401K account, it was 

not liable because the account could not be subject to garnishment. Noting the parties’ agreement that ERISA governed the 

401K account, the court cited federal statutes and case law 

prohibiting the assignment or alienation of accounts governed 

by ERISA. 3

3 See, id.; Guidry v. Sheet Metal Workers Pension Fund, 493 U.S. 365, 110 

S. Ct. 680, 107 L. Ed. 2d 782 (1990).
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(b) Executions

While Florence’s application to determine garnishee liability 

was pending before the court, Florence sought, and the court 

issued, writs of execution against Berg and Mary’s personal 

property. Berg moved the court to exempt “[one-half] interest 

in 10 head of cattle” from the executions.

Following a hearing on the matter, the court found that 

Berg’s cattle were not exempt from the executions and ordered 

them to be sold. After the sale, David M. Kroeger sought to 

intervene in the execution proceedings, demanding one-half of 

the sale proceeds because he had owned a one-half interest in 

the cattle.

The court granted Kroeger’s “Complaint to Intervene” and 

ordered the matter be set for a bench trial once discovery was 

complete. The record does not show any disposition of the 

writs of execution.

2. Appeal

Florence filed a timely appeal from the court’s order 

regarding Zoetis’ garnishee liability. However, at the time of 

Florence’s appeal, its execution against the cattle remained 

pending before the district court.

Consequently, the Nebraska Court of Appeals initially dismissed the appeal for lack of jurisdiction, citing Neb. Rev. 

Stat. § 25-1315 (Reissue 2016) in its minute entry. However, 

Florence filed a motion for rehearing, which the Court of 

Appeals sustained and ordered the parties to brief “the jurisdictional issue presented.” Before the Court of Appeals again 

addressed the appeal, we moved it to our docket. 4

III. ASSIGNMENTS OF ERROR

Florence assigns that the district court erred in (1) denying 

its application against Zoetis, (2) failing to find that Zoetis 

was in control of Berg’s 401K account at the time of garnishment, and (3) excusing Zoetis from disclosure and liability 

4 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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based on an exception that is personal to Berg and was not 

properly raised.

IV. STANDARD OF REVIEW

[1,2] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter 

of law. 5 When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s 

conclusions. 6

[3] Garnishment is a legal proceeding. To the extent factual 

issues are involved, the findings of the fact finder will not be 

set aside on appeal unless clearly wrong; however, to the extent 

issues of law are presented, an appellate court has an obligation 

to reach independent conclusions irrespective of the determinations made by the court below. 7

V. ANALYSIS

1. Jurisdiction

[4,5] Florence and Zoetis agree that we have jurisdiction of 

this appeal. But parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, 

nor may subject matter jurisdiction be created by waiver, 

estoppel, consent, or conduct of the parties. 8 Thus, the parties’ 

agreement is not dispositive. For that reason, we recall a familiar proposition: Before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether 

it has jurisdiction over the matter before it. 9

To perform that duty, we first recite basic principles of appellate jurisdiction, judgments, and final orders. Then, we classify 

an order determining garnishee liability in a postjudgment 

5 In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021).

6 Id.

7 Myers v. Christensen, 278 Neb. 989, 776 N.W.2d 201 (2009).

8 Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).

9 Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).
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garnishment. Last, we address the only question potentially 

affecting jurisdiction here: whether the multiple postjudgment 

garnishments and executions implicate § 25-1315.

(a) Final Order or Judgment

[6-9] For an appellate court to acquire jurisdiction of an 

appeal, the party must be appealing from a final order or a 

judgment. 10 A judgment is the final determination of the rights 

of the parties in an action. 11 Every direction of the court made 

or entered in writing and not included in a judgment is an 

order. 12 By comparing these definitions, one can easily recognize that judgments and orders are mutually exclusive. While 

all judgments not incorrectly designated as such are appealable, 

an order may be appealed only if a statute expressly makes 

the order immediately appealable or the order falls within the 

statutory definition of a final order. 13

[10,11] Under our final order statute, 14 to be a final order 

subject to appellate review, the lower court’s order must (1) 

affect a substantial right and determine the action and prevent 

a judgment, (2) affect a substantial right and be made during a special proceeding, (3) affect a substantial right and be 

made on summary application in an action after a judgment is 

entered, or (4) deny a motion for summary judgment which 

was based on the assertion of sovereign immunity or the 

immunity of a government official. 15 Substantial rights under 

§ 25-1902 include those legal rights that a party is entitled to 

enforce or defend. 16

10 Id.

11 Id. See, also, Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2020).

12 Cinatl v. Prososki, supra note 9. See, also, Neb. Rev. Stat. § 25-914 

(Reissue 2016).

13 Id.

14 See Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020).

15 See Cinatl v. Prososki, supra note 9.

16 Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 

(2016).
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(b) Postjudgment Garnishment Orders

[12] An order overruling an application to determine garnishee liability in a postjudgment garnishment proceeding is an 

order affecting a substantial right made on a summary application in an action after a judgment is entered. 17 Two concepts 

underlie this proposition.

[13] First, we have stated that an order on “‘“summary 

application in an action after judgment”’” is an order ruling on 

a postjudgment motion in an action. 18 Clearly, an application 

for determination of garnishee liability regarding a postjudgment garnishment meets that definition.

[14] Second, a court’s order overruling an application to 

determine garnishee liability affects a garnishor’s substantial 

rights, because it undermines a garnishor’s ability to satisfy its 

judgment against a judgment debtor. 19 Accordingly, Florence 

appeals from a final order.

(c) § 25-1315

[15-17] The question then becomes whether the final order 

here regarding Florence’s postjudgment garnishment directed 

to Zoetis implicates § 25-1315(1). When construing a statute, a 

court must determine and give effect to the purpose and intent 

of the Legislature as ascertained from the entire language of the 

statute considered in its plain, ordinary, and popular sense. 20 A 

court must reconcile different provisions of the statute so they 

are consistent, harmonious, and sensible. 21 And in construing 

17 See, Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016); Cattle 

Nat. Bank & Trust Co. v. Watson, supra note 16. See, also, Gem City Bone 

& Joint v. Meister, 306 Neb. 710, 947 N.W.2d 302 (2020).

18 Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 683, 782 N.W.2d 

848, 867 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 

283 Neb. 369, 808 N.W.2d 867 (2012).

19 See Neb. Rev. Stat. §§ 25-1026 and 25-1056 (Reissue 2016). See, also, 

Cattle Nat. Bank & Trust Co. v. Watson, supra note 16.

20 Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).

21 Id.
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a statute, the court must look at the statutory objective to be 

accomplished, the problem to be remedied, or the purpose to 

be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than 

a construction defeating the statutory purpose. 22

Section 25-1315(1) provides:

When more than one claim for relief is presented in an 

action, whether as a claim, counterclaim, cross-claim, or 

third-party claim, or when multiple parties are involved, 

the court may direct the entry of a final judgment as to one 

or more but fewer than all of the claims or parties only 

upon an express determination that there is no just reason 

for delay and upon an express direction for the entry of 

judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the 

rights and liabilities of fewer than all the parties shall not 

terminate the action as to any of the claims or parties, and 

the order or other form of decision is subject to revision 

at any time before the entry of judgment adjudicating all 

the claims and the rights and liabilities of all the parties.

(Emphasis supplied.)

This court has found that the term “final judgment” as used 

in § 25-1315(1) is the functional equivalent of a “final order” 

within the meaning of § 25-1902. 23 Perhaps this makes sense 

regarding so-called type 1 24 and type 2 25 final orders.

But it makes no sense regarding a type 3 final order, which is 

“made on summary application in an action after a judgment is 

entered,” 26 because, by its plain language, § 25-1315(1) applies 

22 Id.

23 Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).

24 See § 25-1902(1)(a) (order which “in effect determines the action and 

prevents a judgment”).

25 See § 25-1902(1)(b) (order “made during a special proceeding”).

26 See § 25-1902(1)(c).
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“before the entry of judgment adjudicating all the claims and 

the rights and liabilities of all the parties.” In a postjudgment 

garnishment, such as the one at issue here, a judgment adjudicating all the claims and the rights and liabilities of all the parties has already occurred. Here, that occurred when Florence 

obtained its monetary judgment against Berg and Mary.

Prior to the enactment of § 25-1315, an order that effected 

a dismissal with respect to one of multiple parties was a final, 

appealable order, and the complete dismissal with prejudice of 

one of multiple causes of action was a final, appealable order, 

but an order dismissing one of multiple theories of recovery, 

all of which arose from the same set of operative facts, was 

not a final order for appellate purposes. 27 Section 25-1315 was 

an evident attempt by the Legislature to simplify the issue and 

clarify many of the questions regarding final orders when there 

are multiple parties and claims. 28 In other words, § 25-1315(1) 

was intended to prevent interlocutory appeals, not make them 

easier. 29 It attempts to strike a balance between the undesirability of piecemeal appeals and the potential need for making review available at a time that best serves the needs of 

the parties. 30

[18] But the rationale for applying § 25-1315 breaks down 

once a final judgment has been entered between the parties 

and when thereafter a judgment creditor is engaged only in the 

execution of its judgment against specific property. Generally, 

executions and garnishments in aid of executions are mechanisms by which a judgment creditor can seek judicial enforcement of a monetary judgment—usually by seizing and selling 

the judgment debtor’s property. 31 Such proceedings cannot 

27 Cerny v. Todco Barricade Co., supra note 23.

28 Id.

29 Id.

30 Id.

31 See Black’s Law Dictionary 714 (11th ed. 2019) (defining “execution”). 

See, also, Neb. Rev. Stat. § 25-1501.01 (Reissue 2016); § 25-1056.
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occur prior to a judgment being entered and can continue until 

the judgment is satisfied. 32

A court’s final order in an execution or a garnishment in 

aid of execution may determine the rights and liabilities of 

parties regarding specific property of the judgment debtor. 33

For instance, a court may find that a garnishee need not hold 

property of the judgment debtor, because it is not subject to 

garnishment. 34 Additionally, a court may find that one creditor has superior rights over another creditor in specific property of the judgment debtor. 35 But an order adjudicating the 

rights of the judgment creditor, the judgment debtor, and any 

third party claiming an interest in the specific property levied 

upon by a particular writ of execution or garnished by a particular postjudgment garnishment summons cannot reasonably 

be expected to be “subject to revision at any time before the 

entry of judgment adjudicating all the claims and the rights 

and liabilities of all the parties” with respect to entirely separate property. 36

Here, only Florence, Zoetis, and Berg have any interest in 

the garnishment summons directed to Zoetis as plan administrator of Berg’s 401K account. The writs of execution directed 

to entirely separate and distinct property have no relationship 

to this postjudgment garnishment.

Holding otherwise would allow a court to modify such a 

final order until all other execution or postjudgment garnishment proceedings against entirely separate property were concluded. Perverse incentives would result, because garnishees 

32 See, Cattle Nat. Bank & Trust Co. v. Watson, supra note 16; §§ 25-1301, 

25-1056, and 25-1501.01.

33 See, e.g., Myers v. Christensen, supra note 7; Spaghetti Ltd. Partnership 

v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002), disapproved on other 

grounds, ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).

34 See Myers v. Christensen, supra note 7.

35 Id.

36 See § 25-1315(1).
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and judgment creditors would fear potential liability for years 

after dispositive orders on garnished property. Garnishees 

would be reluctant to disburse exempted property to judgment 

debtors. Similarly, judgment creditors would be reluctant to 

sell garnished property to satisfy their judgments. This would 

be counterintuitive and preclude appellate review “at a time 

that best serves the needs of the parties.” 37

[19] Therefore, we hold that § 25-1315 is inapplicable to 

a final order regarding a postjudgment garnishment in aid of 

execution directed to specific property where all rights of all 

parties claiming an interest in the specific property garnished 

have been adjudicated. Because that is the situation here, we 

have jurisdiction of this appeal.

2. Merits

Having found that we have jurisdiction, we turn to the 

merits. Florence constructs an overarching argument based 

upon its three assignments of error: The court erred in finding that Zoetis was not liable for the value of the funds in the 

401K account.

Florence argues that Zoetis should have been liable for the 

value of the funds in the 401K account regardless of ERISA’s 

effect on the account, because, it emphasizes, the garnishment statute governing garnishee liability does not require 

distribution from an account governed by ERISA. 38 Instead, it 

argues, it should receive a judgment directly against Zoetis—

which would be required to pay the judgment with its own 

funds. Florence argues that, in effect, Zoetis was improperly 

allowed to use an exemption personal to Berg to absolve itself 

from liability.

Zoetis does not substantially challenge that it failed to 

comply with our garnishment statutes by not disclosing Berg’s 

37 See Cerny v. Todco Barricade Co., supra note 23, 273 Neb. at 809, 733 

N.W.2d at 886.

38 See Neb. Rev. Stat. § 25-1030.02 (Reissue 2016).
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401K account. Zoetis’ attorney conceded at oral arguments 

that “it is not up to the [garnishee]” to determine what property of the judgment debtor it must disclose. Instead, Zoetis 

repeats its assertion that ERISA shields it from garnishee 

liability because the federal act prevents assignment or alienation of funds in a 401K account and preempts state garnishment statutes.

To resolve the merits of this appeal, we must answer whether 

ERISA shields a plan administrator of an employee benefit plan 

from garnishee liability for failing to comply with our garnishment statutes. This is an issue of first impression. We review 

our garnishment law and ERISA’s effect on state garnishment 

proceedings before addressing this issue.

(a) Garnishment

Garnishment is a legal aid in the execution of a judgment; it 

is a method by which a judgment creditor can recover against 

a third party for the debt owed by a judgment debtor. 39 A proceeding in garnishment is in effect an action by a judgment 

debtor in the garnishor’s name against the garnishee. 40 Here, 

we address only a postjudgment garnishment; we express no 

opinion regarding prejudgment garnishment proceedings.

Under Nebraska’s garnishment statutes, a judgment creditor may, as garnishor, request that the court issue a summons 

of garnishment against any person or business which “has 

property of and is indebted to the judgment debtor.” 41 After 

receiving service of the summons, the person or business possessing or controlling the property of the judgment debtor 

becomes a garnishee and must answer interrogatories and 

39 See, § 25-1056; Myers v. Christensen, supra note 7. See, also, Neb. Rev. 

Stat. §§ 25-1011 and 25-1026 to 25-1031.01 (Reissue 2016).

40 See Darr v. Long, 210 Neb. 57, 313 N.W.2d 215 (1981), overruled on 

other grounds, Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 

701 N.W.2d 320 (2005).

41 See § 25-1056(1). See, also, Spaghetti Ltd. Partnership v. Wolfe, supra

note 33.
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disclose “the property of every description and credits of the 

defendant in his possession or under his control” at the time of 

the garnishment. 42

A garnishee can be discharged if he or she chooses to 

“‘pay the money owing to the defendant by [the garnishee]’” 

into court. 43

But if the garnishee does not pay the funds into court and 

the garnishor is not satisfied with the garnishee’s answers to 

the interrogatories, the garnishor may file an application to 

determine the liability of the garnishee, and “‘may allege facts 

showing the existence of indebtedness of the garnishee to the 

defendant or of the property and credits of the defendant in 

the hands of the garnishee.’” 44 After conducting an evidentiary 

hearing, the court may then find the garnishee liable if the 

garnishee was either “‘indebted to the defendant’” or “‘had 

any property or credits of the defendant, in his possession or 

under his control at the time of being served with the notice 

of garnishment.’” 45

[20-23] A garnishee’s liability is to be determined as of 

the time the garnishment summons is served. 46 The claim of 

a judgment creditor garnishor against a garnishee can rise 

no higher than the claim of the garnishor’s judgment debtor 

against the garnishee. 47 A garnishor is subrogated to the rights 

of the judgment debtor and can recover only by the same 

right and to the same extent that the judgment debtor might 

recover from the garnishee. 48 Accordingly, in determining the 

42 See § 25-1026. See, also, Spaghetti Ltd. Partnership v. Wolfe, supra

note 33.

43 Myers v. Christensen, supra note 7, 278 Neb. at 992, 776 N.W.2d at 205 

(quoting § 25-1027).

44 Id. at 992-93, 776 N.W.2d at 205 (quoting § 25-1030).

45 Id. at 993, 776 N.W.2d at 205 (quoting § 25-1030.02).

46 Id.

47 Id.

48 See Darr v. Long, supra note 40.
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liability of a garnishee to a garnishor, the test is whether, as 

of the time the summons in garnishment was served, the facts 

would support a recovery by the garnishor’s judgment debtor 

against the garnishee. 49

(b) ERISA

[24] ERISA subjects all employee benefit plans—including 401K accounts—to federal regulation. 50 ERISA provides a 

uniform and systematic framework for regulation of employee 

benefit plans to “ensure that the employee’s accrued benefits 

are actually available for retirement purposes.” 51

(i) Anti-Alienation Statute

[25] ERISA utilizes an anti-alienation statute to bar creditors from collecting undistributed funds in an employee benefit 

plan. 52 The anti-alienation statute establishes that undistributed funds in an employee benefit plan cannot be “assigned 

or alienated.” 53 Treasury regulations further define “assignment” and “alienation” for purposes of ERISA as “[a]ny direct 

or indirect arrangement (whether revocable or irrevocable) 

whereby a party acquires from a participant or beneficiary a 

right or interest enforceable against the plan in, or to, all or 

any part of a plan benefit payment which is, or may become, 

49 Myers v. Christensen, supra note 7.

50 See § 1002. See, also, e.g., LaRue v. DeWolff, Boberg & Associates, Inc., 

552 U.S. 248, 128 S. Ct. 1020, 169 L. Ed. 2d 847 (2008).

51 See, Brosamer v. Mark, 561 N.E.2d 767, 770 (Ind. 1990) (internal 

quotation marks omitted) (emphasis omitted). See, also, Massachusetts v. 

Morash, 490 U.S. 107, 109 S. Ct. 1668, 104 L. Ed. 2d 98 (1989); General 

Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980).

52 See, § 1056(d)(1); Guidry v. Sheet Metal Workers Pension Fund, supra 

note 3.

53 See § 1056(d)(1). But see § 1056(d)(2) and (3) (allowing alienation or 

assignment of undistributed funds in employee benefit plan in limited 

situations such as domestic relations order).
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payable to the participant or beneficiary.” 54 Following the distribution of benefits to the participant or beneficiary, ERISA’s 

anti-alienation statute no longer applies. 55

[26] While ERISA’s anti-alienation statute does not refer to 

“garnishment” per se, 56 the U.S. Supreme Court has stated that 

the restrictions of ERISA on assignment or alienation of pension benefits apply to garnishment. 57 This, the Court said, was 

consistent with applicable administrative regulations, 58 with 

the relevant legislative history, 59 and with the views of other 

federal courts. 60

(ii) Preemption

[27,28] To ensure this uniform and systematic framework 

is not frustrated by state laws, ERISA features a statute that 

preempts “all State laws insofar as they may now or hereafter 

relate to any employee benefit plan.” 61 Federal preemption 

arises from the Supremacy Clause of the U.S. Constitution 62

and is the concept that state laws that conflict with federal 

54 See 26 C.F.R. § 1.401(a)-13(c)(1)(ii) (2021) (emphasis supplied). See, 

also, Guidry v. Sheet Metal Workers Nat. Pension Fund, 39 F.3d 1078 

(10th Cir. 1994).

55 See Guidry v. Sheet Metal Workers Nat. Pension Fund, supra note 54.

56 See Ditto v. McCurdy, 103 Haw. 153, 80 P.3d 974 (2003).

57 See Guidry v. Sheet Metal Workers Pension Fund, supra note 3.

58 See § 1.401(a)-13(c)(1)(ii). See, also, General Motors Corp. v. Buha, 

supra note 51.

59 See, § 1056(d)(2); H.R. Conf. Rep. No. 93-1280, 93d Cong., 2d Sess. 280, 

reprinted in 1974 U.S. Code Cong. & Admin. News 5038.

60 See, United Metal Products v. National Bank of Detroit, 811 F.2d 297 (6th 

Cir. 1987); Ellis Nat. Bank of Jacksonville v. Irving Trust Co., 786 F.2d 

466 (2d Cir. 1986); Tenneco Inc. v. First Virginia Bank of Tidewater, 698 

F.2d 688 (4th Cir. 1983).

61 See § 1144(a).

62 U.S. Const. art. VI.
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law are invalid. 63 Therefore, ERISA’s anti-alienation statute 

preempts conflicting state garnishment laws. 64

However, the U.S. Supreme Court has found ERISA’s antialienation statute has a limited preemptive scope. 65 It does 

not preempt a state law that merely increases costs or alters 

incentives for ERISA plans without forcing plans to adopt any 

particular scheme of substantive coverage. 66

While the high court has not directly addressed the issue 

before us here, it has indicated in dicta that a state garnishment statute that does not specifically result in funds being 

garnished from an employee benefit plan would not be preempted. 67 In discussing the rare instances where the garnishment of an account governed by ERISA is allowed, the Court 

explained that state garnishment statutes are an “indirect source 

of administrative costs” for plan administrators. 68 Further, the 

Court stated:

[T]o read the [ERISA] pre-emption provision as displacing all state laws affecting costs and charges on the theory 

that they indirectly relate to ERISA plans . . . would 

effectively read the limiting language . . . out of the statute, a conclusion that would violate basic principles of 

statutory interpretation and could not be squared with our 

63 Hauptman, O’Brien v. Auto-Owners Ins. Co., 310 Neb. 147, 964 N.W.2d 

264 (2021).

64 See Guidry v. Sheet Metal Workers Pension Fund, supra note 3.

65 See New York State Conference of Blue Cross & Blue Shield Plans v. 

Travelers Ins. Co., 514 U.S. 645, 115 S. Ct. 1671, 131 L. Ed. 2d 695 

(1995).

66 See Rutledge v. Pharmaceutical Care Management Assn., ___ U.S. ___, 

141 S. Ct. 474, 480, 208 L. Ed. 2d 327 (2020).

67 See New York State Conference of Blue Cross & Blue Shield Plans v. 

Travelers Ins. Co., supra note 65.

68 Id., 514 U.S. at 662. See Mackey v. Lanier Collection Agency & Serv., 486 

U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988). But see Guidry v. 

Sheet Metal Workers Pension Fund, supra note 3.
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prior pronouncement that [p]re-emption does not occur 

. . . if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with 

many laws of general applicability. 69

[29] Picking up where the high court left off, we find 

that ERISA does not preempt a garnishee, acting as a plan 

administrator, from being found liable under § 25-1030.02. 

Compliance with our garnishment statutes does not regulate 

an employee benefit plan or conflict with any ERISA statute. 

The disclosure requirement of § 25-1026, as applied to a 401K 

account, results only in a minor increase in administrative 

costs and does not force a plan to adopt any particular scheme. 

Thus, the preemption doctrine, based on ERISA, does not 

preclude a plan administrator from being subject to liability 

under § 25-1030.02. The plan administrator would be liable, 

not the plan itself.

(c) Zoetis’ Liability

While ERISA does not preempt § 25-1030.02, ERISA’s antialienation statute still shields Zoetis from liability. Under the 

circumstances here, the statute nullified the court’s ability to 

find a 401K plan administrator liable as a garnishee.

As stated earlier, ERISA’s anti-alienation statute—as further defined by the treasury regulation—bars a garnishor from 

“acquir[ing] from a participant or beneficiary a right or interest 

enforceable against the plan in, or to, all or any part of a plan 

benefit payment which is, or may become, payable to the participant or beneficiary.” 70

[30] As we have already explained, a proceeding in garnishment is in effect an action by a judgment debtor in 

the garnishor’s name against the garnishee. 71 A garnishor is 

69 See New York State Conference of Blue Cross & Blue Shield Plans v. 

Travelers Ins. Co., supra note 65, 514 U.S. at 661 (internal quotation 

marks omitted).

70 See § 1.401(a)-13(c)(1)(ii).

71 See id.
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subrogated to the rights of the judgment debtor and can 

recover only by the same right and to the same extent that 

the judgment debtor might recover from the garnishee. 72 The 

claim of a judgment creditor garnishor against a garnishee 

can rise no higher than the claim of the garnishor’s judgment 

debtor against the garnishee. 73 It is an invariable rule that 

under no circumstances shall the garnishee, by operation of the 

proceedings against him or her, be placed in a worse condition 

than the garnishee would be in if the judgment debtor’s claim 

against the garnishee were enforced by the judgment debtor 

himself or herself. 74 Therefore, in determining the liability of 

a garnishee to a garnishor, the test is whether, as of the time 

the summons in garnishment was served, the facts would support a recovery by the garnishor’s judgment debtor against 

the garnishee. 75

Berg’s only claim against Zoetis would be to withdraw funds 

in his 401K account. Zoetis’ liability would be determined 

solely upon Florence’s acquired rights from Berg against the 

undistributed 401K funds, but Florence cannot acquire such 

rights under ERISA’s anti-alienation statute.

Stated another way, if Zoetis was found liable, it would 

become a creditor of Berg’s 401K account. However, ERISA 

would bar Zoetis from garnishing the account. As a result, 

Zoetis would be in a worse position than if Berg had sought to 

withdraw his funds from his account, because Zoetis would be 

stuck with an unenforceable judgment against Berg. Therefore, 

while Zoetis failed to comply with our garnishment statutes, 

Zoetis cannot, under these circumstances, be found liable for 

the value of Berg’s 401K account.

[30] We are uncertain whether the district court’s reasoning 

aligns with our own. The court found that Zoetis could not be 

72 See Darr v. Long, supra note 40.

73 See id.

74 See Pundt v. Clary, 13 Neb. 406, 14 N.W. 167 (1882).

75 Myers v. Christensen, supra note 7.
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liable because the “funds are not subject to garnishment,” but 

it cited our cornerstone opinion discussing the test to determine 

garnishee liability. 76 However, any difference in reasoning is 

inconsequential. An appellate court may affirm a lower court’s 

ruling that reaches the correct result, albeit based on different reasoning. 77

We emphasize that ERISA plan administrators must comply with § 25-1026. Nothing in this opinion should be read to 

suggest that a district court cannot exercise its discretion to 

address a willful refusal to comply with a garnishment summons and interrogatories, pursuant to the power of a court of 

record to punish for contempt. 78

VI. CONCLUSION

ERISA’s anti-alienation statute prevents Florence from 

acquiring Berg’s rights to the funds in his 401K account, and 

therefore, under the circumstances here, Zoetis could not be 

found liable for failing to comply with our garnishment statutes. We affirm the district court’s order.

Affirmed.

Papik, J., not participating.

76 See, generally, id.

77 State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).

78 See Neb. Rev. Stat. § 25-2121 (Reissue 2016).

Stacy, J., concurring.

I agree with the outcome reached by the majority, but write 

separately to comment more generally on appellate jurisdiction 

to review garnishee liability determinations. The majority succinctly concludes that “[a]n order overruling an application to 

determine garnishee liability in a postjudgment garnishment 

proceeding is an order affecting a substantial right made on a 

summary application in an action after a judgment is entered.” 

But my review of our garnishment precedent suggests the jurisdictional issue is not so straightforward.
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Over the years, we have developed competing lines of 

authority regarding the nature of garnishee liability determinations. One line generally treats postjudgment garnishments as 

actions in their own right, 1 and describes a decision adjudicating garnishee liability as a “judgment,” 2 presumably because 

that vernacular appears in the garnishment statutes. 3 A second 

line of authority describes garnishments as special proceedings and thus conditions appellate jurisdiction on satisfying the 

provisions of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) 

that govern final orders in special proceedings. 4 A third line 

of authority describes garnishments in aid of execution as 

summary applications in an action after judgment is rendered 

and thus conditions appellate jurisdiction on satisfying the 

provisions of § 25-1902 that govern final orders in summary 

1 See, Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 

(2002), disapproved on other grounds, ML Manager v. Jensen, 287 Neb. 

171, 842 N.W.2d 566 (2014); Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 

487 (1998); Torrison v. Overman, 250 Neb. 164, 549 N.W.2d 124 (1996), 

disapproved on other grounds, ML Manager, supra note 1.

2 Spaghetti Ltd. Partnership, supra note 1, 264 Neb. at 368, 647 N.W.2d at 

619. See, also, Torrison, supra note 1.

3 See, e.g., Neb. Rev. Stat. § 25-1028 (Reissue 2016) (“judgment may be 

entered for such amount as the court may find due from the garnishee”); 

Neb. Rev. Stat. § 25-1030.02 (Reissue 2016) (“trial of the determination 

of the liability of the garnishee shall be conducted the same as in a 

civil action,” and if garnishee is found liable, “[t]he plaintiff in such 

event may have a judgment against the garnishee”); Neb. Rev. Stat. 

§ 25-1031 (Reissue 2016) (“[f]inal judgment shall not be rendered against 

the garnishee until the action against the defendant in the original action 

has been determined”); Neb. Rev. Stat. § 25-1031.01 (Reissue 2016) 

(“[t]he judgment in the garnishment action shall be conclusive between the 

garnishee, plaintiff, defendant, and any intervenor”).

4 See Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477, 

35 N.W.2d 116 (1948). See, also, Turpin v. Coates, 12 Neb. 321, 323, 

11 N.W. 300, 301 (1882) (“[w]e have no doubt that an order discharging 

garnishees, is an order affecting a substantial right, made in a special 

proceeding”).
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applications. 5 And occasionally, we have combined classifications when describing the nature of garnishments in aid 

of execution. 6

We acknowledged this “tangle of garnishment precedents” in 

Shawn E. on behalf of Grace E. 7 Therein, we stated:

While it is well established that garnishment in aid of 

execution is a legal statutory remedy, we have not always 

been consistent in describing its nature. At various times 

we have described garnishment as a legal action or as a 

special proceeding, and we have even alluded to a challenge to a garnishment as a summary application in an 

action after judgment is rendered. 8

We did not find it necessary in Shawn E. on behalf of Grace 

E. to resolve the tangle of garnishment precedent, because we 

concluded the garnishment determination at issue there was not 

final and appealable under any line of authority. The majority opinion here does not untangle the garnishment precedent 

either, and instead, it relies on one of our established lines of 

authority without distinguishing or disapproving the others.

But disposition of this appeal did not require the court to 

reconcile our competing lines of authority, because no matter which line is followed, the jurisdictional conclusion is the 

same: The district court’s determination of Zoetis’ garnishment 

liability is final and appealable. As such, whether the district 

court’s determination of Zoetis’ garnishee liability is characterized as a judgment in a garnishment action, as an order 

affecting a substantial right made during a special proceeding, 

5 See Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 

906 (2016).

6 See Bourlier v. Keithley, 141 Neb. 862, 865, 5 N.W.2d 121, 123 (1942) 

(“[a] proceeding in aid of execution is a special proceeding made upon a 

summary application in an action after judgment”).

7 Shawn E. on behalf of Grace E. v. Diane S., 300 Neb. 289, 293, 912 

N.W.2d 920, 924 (2018).

8 Id. at 293, 912 N.W.2d at 923-24.
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or as an order affecting a substantial right made on summary 

application in an action after judgment is entered, I agree with 

the majority that we have appellate jurisdiction. 9

Derr, District Judge, joins.

9 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020) (authorizing appeals of 

district court judgments, decrees, and final orders).