Those who have posted bail for a friend or relative may have learned the hard way that they may never get the money back, even if the person shows up for court.

If the person whom they bonded out owes child support, that is.

But a Nebraska Supreme Court decision Friday appears to have changed that — and it could mean a lot less money ending up going to children owed financial support.

The decision came in State v. McColery, where a defense attorney, Brett McArthur, sought to get back the bond money his client had assigned to him to pay for him to represent him.

But the state had put a lien on the money, saying McArthur's client owed past-due child support.

The same thing happens to grandparents, wives and employers all the time. They put up the money so someone can get out of jail, only to find out later the state took the money for back child support.

"As you might imagine, people who are accused of crimes don't always pay their child support. So the amount of money that it could affect is huge," said Lincoln attorney McArthur, who argued the case before the state's high court in August.

It also means private defense attorneys can keep taking cases on agreements that bond be assigned to them without fear that they'll never see the money at the end of the case, he said.

"If we had not won this case, bond assignments for attorneys would've become a thing of the past," McArthur said.

The ramifications for this are huge, he said.

Arguing the other side before the state Supreme Court in August, Braden Storer, a deputy Lancaster County Attorney in the child support division, said the Clerk of the Court then was holding more than $800,000 in bond money.

The McColery case involved $5,000.

After the court kept its statutory 10 percent, the state and McColery were left to fight over $4,500.

Storer argued that the bond money became personal property registered with a county office — and therefore subject to a child support lien — the moment it was filed.

But McArthur argued money, in general, is different than a car or other tangible, personal property, that has to be registered.

"When a roommate or grandma or employer goes to the jail, they're not going to the office to register money," he said.

Justice William B. Cassel asked Storer what happens if a defendant absconds and the bond money is forfeited.

Storer said his office asks to reinstate the bond to get the money for child support.

Which prompted Cassel to ask: "What would be the authority to divert forfeited bond money from the school district ultimately to some private person?"

For the interest of justice, Storer said.

By state law, fines and forfeitures are supposed to go to the schools.

In an opinion Friday, Justice John R. Freudenberg said the court concluded that money deposited in the court for bond is not "registered" personal property as defined in state child support laws.

He said it appeared the only property specifically contemplated by lawmakers who passed LB7 in 1985 were motor vehicles and mobile homes.

"Although providing redress for unpaid child support addresses very important public policy concerns, the attachment of a judgment lien to money deposited with the clerk of the court has other public policy implications as well. It is not the role of this court to weigh such public policy matters," Freudenberg wrote. "And these public policy questions were not weighed by the Legislature when it enacted LB7."

Other states specifically allow child support liens to attach to money in bank accounts or elsewhere, he said.

"Our Legislature could have similarly so provided. But, instead, it limited the lien to 'registered personal property,'" Freudenberg said.

He said children's needs call for effective and efficient enforcement of child support obligations, which can easily occur by diligently checking bail records against child support judgments and taking prompt action.

If a defendant hasn't assigned bond money to someone, he said, a routine garnishment could capture the funds at the end of a case.

"If the Legislature believes that we have not correctly ascertained its intent, then it is free to amend 42-371 accordingly," Freudenberg said.

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

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