McCullough v. McCullough
299 Neb. 719
| Neb. | 2018Background
- 2010 dissolution decree required Wallace to pay $3,005/month child support, share childcare costs, and $552,124.89 in property equalization (installments of $50,000/year plus interest).
- Michelle filed for modification in 2012; Wallace filed counterclaims seeking custody and modification and alleged credits toward the equalization payment. The modification claims remained pending for years.
- Michelle filed a verified contempt complaint in June 2016 alleging Wallace failed to pay child support, childcare expenses ($5,031.23), and property equalization installments (court found $317,314.99 due).
- The district court (Sept. 30, 2016) found Wallace in willful civil contempt for unpaid childcare and equalization payments, ordered monthly purge payments ($750) with jail sanctions for missed payments, and awarded attorney fees; later (Dec. 8, 2016) found him in contempt for unpaid child support and ordered additional monthly payments and incarceration sanctions for nonpayment, plus fees.
- Wallace appealed three orders (contempt/orders on reconsideration; supersedeas bond amount; contempt and related orders including recusal denial). The Supreme Court consolidated the appeals.
Issues
| Issue | Plaintiff's Argument (Wallace) | Defendant's Argument (Michelle) | Held |
|---|---|---|---|
| Contempt for unpaid property equalization and childcare (S-16-1086) | Pending modification action meant he need not comply until modification decided; judgment dormant for lack of execution | Decree remains enforceable until modified; Michelle actively pursued collection so judgment not dormant | Court affirmed contempt: pending modification does not suspend obligations; Michelle had not allowed judgment to go dormant |
| Contempt for unpaid child support (S-17-037) | Pending modification of child support excused nonpayment | Child support obligation remains in force until court modifies it; contempt proven willful | Court affirmed contempt and sanctions; pending modification does not excuse nonpayment |
| Supersedeas bond amount and appealability (S-16-1187) | Bond exceeded statutory 50% of net worth; his net worth < $10,000 so bond excessive | Order setting bond is not separately appealable; bond issues could be raised on appeal of underlying order | Appeal dismissed for lack of jurisdiction; bond issue moot after affirmance of contempt order |
| Recusal & motion for judgment on modification (S-17-037) | Judge showed bias by signing arrest warrant despite alleged payment attempt; motion for judgment on counterclaim should have been granted | Record shows judge promptly recalled warrant and no bias established; modification proceeding was stayed by appeal so court lacked jurisdiction to grant judgment | Recusal denied (no bias shown); motion for judgment not decided by trial court and not reviewable; both rulings affirmed |
Key Cases Cited
- State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759 (re contempt standard and burdens of proof)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661 (postjudgment contempt orders are final)
- Hossaini v. Vaelizadeh, 283 Neb. 369 (disapproving Smeal on other grounds)
- Martin v. Martin, 294 Neb. 106 (continuing jurisdiction over dissolution decrees for equitable relief)
- Johnson v. Johnson, 290 Neb. 838 (modification may be retroactive; obligations remain until changed)
- Sickler v. Sickler, 293 Neb. 521 (contempt characterized as summary application after judgment)
- Buffalo County v. Kizzier, 250 Neb. 180 (procedures/timing for supersedeas bond issues)
- Green v. Morse, 57 Neb. 798 (order fixing supersedeas bond not separately appealable)
- Waite v. City of Omaha, 263 Neb. 589 (supersedeas bond maintains order but does not make nonfinal order appealable)
- Folgers Architects v. Kerns, 262 Neb. 530 (appellate procedures addressing supersedeas deposits)