Becher v. Becher
970 N.W.2d 472
Neb.2022Background
- Mark and Sonia Becher divorced by decree in December 2015 after a long marriage with three children and substantial property; multiple post‑decree contempt actions and appeals followed.
- Sonia moved for contempt (2017; supplemental 2019) claiming Mark failed to pay: children’s 2016 medical expenses, future medical expenses, specified pre‑2016 real estate taxes, and costs of a 2018 wilderness therapy program for a child; Sonia sought interest and attorney fees.
- The district court (Sept. 10, 2020) found Mark in contempt, imposed a suspended 60‑day jail term with a purge plan requiring payment of specified sums, prejudgment/postjudgment interest, and Sonia’s attorney fees.
- Mark appealed, challenging (inter alia) contempt findings as to the 2016 medical expenses, future medical expenses in the purge plan, real estate taxes, wilderness therapy costs (arguing judicial estoppel), interest, and the attorney‑fee award.
- The Nebraska Supreme Court affirmed most of the contempt findings and the fee award but modified the order to (1) credit Mark for the stipulated $886.05 payment for the 2016 medical expenses and (2) strike the purge provisions treating future medical expenses as a ground for automatic contempt.
Issues
| Issue | Plaintiff's Argument (Sonia) | Defendant's Argument (Mark) | Held |
|---|---|---|---|
| 2016 children’s medical expenses — contempt and credit | Mark failed to pay his share timely; should be held in contempt and required to reimburse $864.76 | Mark paid $886.05 into court in 2017 (stipulated); should receive credit and not be held in contempt | Court credited Mark for the $886.05, struck contempt finding and purge requirement as to the 2016 expenses (modified order) |
| Future children’s medical expenses in purge plan | Court may require prompt future payment to avoid serial contempt proceedings | Conditioning future jail on future obligations violates civil‑contempt principles and may imprison someone unable to purge | Court abused discretion by making future medical obligations part of purge; struck those provisions |
| Real estate taxes (pre‑Dec. 2015 amounts articulated in May 2016 order) | May 2016 order required Mark to pay his share; his failure was willful—Sonia is entitled to reimbursement and contempt remedy | The May 2016 order was ambiguous/erroneous; Mark also asserted setoff defenses | Court construed May 2016 order as directing payment, held Mark willfully disobeyed; contempt and purge reimbursement were affirmed (no collateral‑attack/void‑judgment showing; law‑of‑the‑case) |
| Wilderness therapy program costs (2018) — medical expense classification; judicial estoppel | Program involved mental‑health/medical services; costs are “medical expenses” under the decree and Mark must pay 90% | Sonia previously argued the placement was not a "medical problem" (in Mark’s contempt action) and prevailed; she is judicially estopped from later claiming expenses are medical; alternatively, costs aren’t covered by decree | Court declined to apply judicial estoppel (no clear bad‑faith showing), concluded the decree’s language includes mental‑health treatment, and affirmed contempt/reimbursement order for those costs |
| Interest on sums Sonia paid (real estate taxes, wilderness program, orthodontia) | Interest should be awarded for deprivation of funds; some interest is postjudgment on already adjudicated items | Statute §45‑103.04 bars prejudgment interest for actions arising under chapter 42 (domestic relations) | Court held interest award permissible in equity; real estate tax interest is postjudgment (May 2016 order was a judgment); interest on other items could be ordered pre‑judgment equitably—no abuse of discretion |
| Attorney fees and costs awarded to Sonia ($7,346.96) | Fees incurred to enforce court orders—award appropriate upon contempt finding | Mark contends he reasonably litigated and some fees should be reduced given partial success on appeal | District court’s fee award was within discretion and is affirmed |
Key Cases Cited
- Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (standard of review in civil contempt proceedings)
- Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 481 (adoption of proposed findings does not eliminate deference to trial court’s factual findings)
- Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (civil contempt principles; willfulness and burden of proof)
- Cleaver‑Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (doctrine of judicial estoppel; bad‑faith requirement and equitable application)
- New Hampshire v. Maine, 532 U.S. 742 (judicial estoppel is discretionary; no exhaustive formula)
- Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (collateral attack principles; void vs. erroneous judgments)
- Anderson v. Bessemer City, 470 U.S. 564 (even verbatim adoption of proposed findings are the court’s findings and reviewed for clear error)