                  United States Bankruptcy Appellate Panel
                           FOR THE EIGHTH CIRCUIT

                                _____________

                                No. 97-6092NE
                                _____________

In re:                           *
                                 *
Charles Ellis Roberts, Maria Ann Roberts,     *
                                 *
     Debtors.                    *
                                 *
James J. Stumpf,                           *    Appeal from
the United States
                                 *    Bankruptcy Court for
the
     Trustee - Appellant,                       *    District
of Nebraska
                                 *
          v.                     *
                                 *
Charles Ellis Roberts, Maria Ann Roberts,     *
                                 *
     Debtors - Appellees.             *
                        _____________

                     Submitted: February 12, 1998
                         Filed: March 6, 1998
                             _____________

Before WILLIAM A. HILL, SCHERMER, and SCOTT, Bankruptcy
Judges.
                        _____________

WILLIAM A. HILL, Bankruptcy Judge.


     The Chapter 7 trustee, James J. Stumpf (“trustee”),
appeals the order of the bankruptcy court1 allowing the
debtors, Charles Ellis and Maria Ann Roberts (“the Roberts”),

      1
       The Honorable Timothy J. Mahoney, Chief Judge, United States Bankruptcy
Judge for the District of Nebraska.
to claim a homestead exemption under Section 40-102 of the
Nebraska Homestead Act (“Act”), Nebraska Revised Statutes §§
40-101 to 40-116. The trustee contends that because neither
of the Roberts is a statutory “head of a family,” they fail to
qualify for the exemption pursuant to Section 40-115, which the
trustee contends preconditions qualification for the exemption.
For the following reasons, we affirm the judgment of the
bankruptcy court.

                        I.   BACKGROUND

     The Roberts filed their voluntary petition for relief
under Chapter 7 of the United States Bankruptcy Code on
February 14, 1997. At that time, they were married, but
separated. Their marriage produced no children, and no other
individual qualifying as a dependent under the Act lived with
them during their marriage.

     In their petition, the Roberts claimed a homestead
exemption in what had been their marital abode prior to their
separation, and in which one of them resided on the petition
date. The trustee timely objected to this claim.        At the
hearing on the trustee’s objection, the Roberts stipulated that
neither of them met the definitional attributes of the term
“head of a family.”

     In its July 1997 order, the bankruptcy court ruled that
the Roberts qualified for a homestead exemption pursuant to
Section 40-102 of the Act.       The court disposed of the
trustee’s arguments to the contrary by finding that married
individuals need not qualify as “head of a family” under
Section 40-115 in order to claim the Nebraska homestead
exemption.




                               2
     On appeal, the trustee argues that only an individual who
is a “head of a family” may claim a homestead exemption under
the Act.   He contends that this requirement extends to all
claimants of homestead exemptions, regardless of their marital
status. Further, the trustee argues that Section 40-102 does
not create an independent means by which a married person who
is not a “head of a family” may claim a homestead exemption,
but merely provides the method by which married and unmarried
homestead claimants may select their homestead property.




                              3
     The Roberts counter that the Act allows married homestead
claimants an exemption, regardless of whether they qualify as
the “head of a family” under Section 40-115. They contend that
Section 40-102 operates to create this exemption right,
independent of the requirements of Section 40-115.



                            II.    STANDARD OF REVIEW

     On appeal, the bankruptcy court’s findings of fact are
reviewed for clear error and its legal determinations are
reviewed de novo. O’Neal v. Southwest Mo. Bank of Carthage (In
re Broadview Lumber Co.), 118 F.3d 1246, 1250 (8th Cir. 1997);
Natkin & Co. v. Myers (In re Rine & Rine Auctioneers, Inc.),
74 F.3d 848, 851 (8th Cir. 1996); Hartford Cas. Ins. v. Food
Barn Stores, Inc. (In re Food Barn Stores, Inc.), 214 B.R. 197,
199 (B.A.P. 8th Cir. 1997); see also Fed. R. Bankr. P. 8013.2
“A finding is ‘clearly erroneous’ when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a
mistake has been committed.” Anderson v. Bessemer City, 470
U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)
(quoting United States v. United States Gypsum Co., 333 U.S.
364, 395, 68 S. Ct. 525, 542, 92 L.Ed. 746 (1948)); see United
States v. Garrido, 38 F.3d 981, 984 (8th Cir. 1994);



      2
        Rule 8013 of the Federal Rules of Bankruptcy Procedure reads, in pertinent part,
as follows:

          Findings of fact, whether based on oral or documentary evidence, shall
          not be set aside unless clearly erroneous, and due regard shall be given
          to the opportunity of the bankruptcy court to judge the credibility of the
          witnesses.

Fed. R. Bankr. P. 8013.

                                             4
Chamberlain v. Kula (In re Kula), 213 B.R. 729, 735 (B.A.P. 8th
Cir. 1997).




                               5
                   III.   DISCUSSION OF LAW

     We begin by examining the statutes pertinent to this
appeal. On the date the Roberts filed their bankruptcy
petition, Section 40-101 of the Act provided, in relevant part,
as follows:

      A homestead not exceeding ten thousand dollars in
      value shall consist of the dwelling house in which
      the claimant resides, its appurtenances, and the land
      on which the same is situated, . . . and shall be
      exempt from judgment liens and from execution or
      forced sale, except as provided in sections 40-101 to
      40-116.

Neb. Rev. Stat. § 40-101.    Section 40-102, upon which the
Roberts base their claim for an exemption, further provides:

       If the claimant be married, the homestead may be
       selected from the separate property of the husband,
       or with the consent of the wife from her separate
       property. When the claimant is not married, but is
       the head of a family within the meaning of section
       40-115, the homestead may be selected from any of
       his or her property.

 Neb. Rev. Stat. § 40-102. Section 40-115, upon which the
 trustee’s argument largely turns, reads as follows:

            The phrase head of a family, as used in sections
       40-101 to 40-116, includes within its meanings every
       person who has residing on the premises with him or
       her and under his or her care and maintenance:
            (1)       His or her minor child or the minor
       child of his or her deceased           wife or husband;
            (2)       A minor brother or sister or the minor
       child of a deceased          brother or sister;
            (3)       A father, mother, grandfather, or
       grandmother;
            (4)       The father, mother, grandfather, or
       grandmother of a deceased         husband or wife;

                                  6
     (5)        An unmarried sister, brother, or any
other of the   relatives           mentioned in this
section who     have attained the age of majority
         and    are unable to take care of or support
themselves;    or




                           7
               (6)      A surviving spouse who resides in
          property which would have      qualified  for   a
          homestead exemption if the deceased spouse were
                   still alive and married to the surviving
          spouse.

 Neb. Rev. Stat. § 40-115.

      Both the Roberts and the trustee find ample support for
 their respective positions in this matter in the existing case
 law on this subject. The issue of who is entitled to claim
 a Nebraska homestead exemption is in great ferment in the
 bankruptcy courts of Nebraska, as well as in recent decisions
 emanating from the Supreme Court of Nebraska.         Conflict
 abounds in the case law on this subject.

      In the Nebraska bankruptcy courts, two competing
 positions have emerged on this point. In one line of cases,
 the availability of the Nebraska homestead exemption has been
 restricted to only those individuals who qualify as a “head
 of a family.” See In re Roush, 215 B.R. 592, 593 (Bankr. D.
 Neb. 1997); In re Allison, 209 B.R. 494, 495 (Bankr. D. Neb.
 1997); In re Foulk, 134 B.R. 929, 930-31 (Bankr. D. Neb.
 1991);   In re Coonrod, 135 B.R. 375, 377 (Bankr. D. Neb.
 1991);   In re Nachtigal, 82 B.R. 533, 534-35 (Bankr. D. Neb.
 1988); Hartmann v. Wolf (In re Hartman), 19 B.R. 844, 845
 (Bankr. D. Neb. 1982).
      More recently, in the order of the bankruptcy court which
 now forms the subject of this appeal, another court has held
 otherwise.3 Here the bankruptcy court has relied upon two

      3
        This split in authority was recently recognized in In re Roush, 215 B.R. 592, 593
n.2 (Bankr. D. Neb. 1997), where the bankruptcy court stated, “Chief Judge Mahoney
recently ruled that the Nebraska homestead exemption is available to a married person
without children. See In re Roberts, 211 B.R. 696 (Bankr. D. Neb. 1997). But see § 40-
105, which arguably addresses the question of who may claim the homestead. . . .”


                                             8
decisions from the Supreme Court of Nebraska, Brusha v.
Phipps, 126 N.W. 856 (Neb. 1910), and Palmer v. Sawyer, 103
N.W. 1088 (Neb. 1905), to support its holding that an
individual’s status of being married is, alone, sufficient to
create in that person the right to claim a homestead,
irrespective of whether he or she is a “head of a household.”
However,




                              9
 as was noted by the bankruptcy court, at the time these
 decisions were handed down, husbands were statutorily defined
 as “heads of families” under the Nebraska Homestead Act. Only
 in 1979 was the Act amended to eliminate this mandate.

      Nevertheless, a more recent decision from the Supreme
 Court of Nebraska carries forward its earlier interpretations
 that a married person may claim a homestead exemption simply
 on the basis of marital status, and thus, supports the
 bankruptcy court’s order in this matter. In Landon v.
 Pettijohn, 231 Neb. 837, 438 N.W.2d 757 (1989), the court
 discussed the purpose and effect of Section 40-102 with the
 following:

           This statute, in addition to delineating which
           property may be selected as the homestead, defines
           the persons who are entitled to make the selection.
           Under § 40-102, a homestead can only arise where the
           claimant is married or, if not married, where the
           claimant is the head of family as defined by Neb.
           Rev. Stat. § 40-115 (Reissue 1988).

Id. at 840, 438 N.W.2d at 759.4    In this passage, the court
read Section 40-102 as we do, that is, in the disjunctive.




       4
         The case law emanating from the court is slightly disarrayed on these points,
however. In Horace Mann Companies v. Pinaire, 248 Neb. 640, 538 N.W.2d 168 (1995),
the court glossed over the issues we now face in reaching its ultimate conclusion that two
spouses may not each claim a $10,000.00 homestead exemption in subject property. In
doing so, the court restated the bankruptcy court’s holding in In re Foulk that “the
Nebraska homestead exemption was available only to a head of household.” Id. at 650,
538 N.W.2d at 173-74. Pinaire, however, does not address the definitional import of
Section 40-102, and is thus distinguishable from Landon, which directly interprets the
statute. Therefore Pinaire is also distinguishable from, and is not controlling precedent in,
the matter at hand.


                                             10
     While the trustee would impute to any claimant the
requirement that he or she meet the definition of “head of a
family,” our reading of Section 40-102 does not prescribe the
same result.    Section 40-102 clearly contemplates that a
married person may claim a




                             11
homestead exemption, without the requirement that he or she be
a “head of a family,” as the statute otherwise requires of all
unmarried claimants.

     It is true, as the trustee asserts, that Section 40-102
discusses the choices a qualified homestead exemption claimant
has in selecting property upon which to base his or her claim,
by providing, as to married persons, “that the homestead may
be selected from the separate property of the husband or, with
the consent of the wife, from her separate property,” Lincoln
Lumber Co. v. Elston, 1 Neb.App. 741, 746, 511 N.W.2d 162, 166
(1993). However, the section additionally “defines the persons
who are entitled to make the selection.” Landon v. Pettijohn,
231 Neb. 837, 840, 438 N.W.2d 757, 760 (1989) (emphasis added).
The category of individuals entitled to claim a homestead
exemption, and who are thus entitled to select the property
that constitutes their homestead, includes married persons,
irrespective of the status of “head of a family.” We thus are
in agreement with the bankruptcy court’s assessment of this
matter: “Only if [a] claimant is not married does one need to
refer to the definition of “head of household” in [Section] 40-
115 to determine if the claimant qualifies for the exemption.”



     Lastly, we note that resort to statutory interpretation is
unnecessary in this matter. Absent anything indicating to the
contrary, the language of a statute must be given its plain and
ordinary meaning. Proctor v. Minnesota Mut. Fire & Cas., 248
Neb. 289, 295, 534 N.W.2d 326, 331(1995). Where the words of
a   statute   are   “plain,   direct,   and   unambiguous,   no
interpretation is necessary or will be indulged to ascertain
their meaning.” Hamilton v. Hamilton, 242 Neb. 687, 693, 496
N.W.2d 507, 512 (1993); Gatewood v. Powell, 1 Neb.App. 749,
753, 511 N.W.2d 159, 161 (1993).


                              12
                       IV.   CONCLUSION

     For the reasons stated above, the order of the bankruptcy
court is AFFIRMED.




                              13
A true copy.

    Attest:

         CLERK, U.S. BANKRUPTCY APPELLATE PANEL, EIGHTH
         CIRCUIT.




                        14
