Moore v. Moore
302 Neb. 588
| Neb. | 2019Background
- Divorce decree (Oct 1, 2014) awarded Lucinda sole custody and required Thayne to pay child support and 50% of “work related daycare expenses” on receipt.
- Thayne filed to modify custody (Sept 2015); both parties obtained separate psychological/custody evaluations after stipulating each would pay their own expert fees; neither expert recommended a custody change.
- Thayne voluntarily dismissed his modification complaint (Feb 15, 2017). Lucinda then sought: (1) judgment for past daycare expenses allegedly incurred while she worked (camps, lessons, sitters, transportation, overnight camps), (2) attorney fees, and (3) contribution toward Lucinda’s expert fees.
- District court treated many activities as work-related childcare, awarded Lucinda $1,394.35 (50% share, with overnight camps apportioned differently), $3,500 in attorney fees, and ordered Thayne to pay $2,500 toward Lucinda’s expert fees.
- Thayne appealed, arguing (a) the expenses were extracurricular activities not daycare, (b) attorney fees were improper because his suit was not frivolous, and (c) the court should have honored the stipulation that each party pay their own expert fees.
Issues
| Issue | Plaintiff's Argument (Lucinda) | Defendant's Argument (Thayne) | Held |
|---|---|---|---|
| Whether camps/lessons/activities qualify as "work-related daycare" under child support guidelines | Activities provided supervision while she worked and were cheaper than traditional daycare; thus they are care expenses allocable under the decree | Those items are "extracurricular activities/education," distinct from "day care," and not recoverable as daycare expenses | Affirmed in part: day camps, lessons, sitters, transport were childcare (reasonable, necessary, work‑related); overnight camp costs vacated |
| Whether overnight summer/overnight camp fees are work-related childcare | Lucinda sought a prorated share as part of childcare expenses | Thayne argued overnight camps are not tied to parental working hours and thus not daycare | Reversed as to overnight camps: court abused discretion including overnight camp fees; vacated portion ($117.63) |
| Whether the court should enforce the parties’ stipulation that each pay own expert fees | Lucinda argued dismissal made her expert unnecessary and exceptional circumstances exist | Thayne argued the stipulation was binding and should be enforced | Reversed: trial court abused discretion by awarding $2,500 toward Lucinda’s expert despite the stipulation; vacated |
| Whether attorney fees were proper though modification suit was not frivolous | Lucinda sought fees as prevailing party on childcare enforcement and under customary practice in dissolution cases | Thayne argued fees were improper because his complaint was filed in good faith and voluntarily dismissed | Affirmed: court did not abuse discretion in awarding $3,500 given Lucinda prevailed on childcare enforcement and factors for fee awards were considered |
Key Cases Cited
- Nimmer v. Nimmer, 203 Neb. 503 (1979) (discusses attorney fee consideration and prevailing‑party concepts)
- Garza v. Garza, 288 Neb. 213 (2014) (continues court’s authority to award fees and costs in dissolution matters)
- McCullough v. McCullough, 299 Neb. 719 (2018) (standards for reviewing childcare expense determinations and enforcement of decrees)
- Marriage of Mattson, 95 Wash. App. 592 (1999) (day camps and activities can be childcare when providing supervision during custodial parent's work hours)
- Simpson v. Simpson, 650 N.E.2d 333 (Ind. App. 1995) (trial court discretion to characterize summer camp expenses as necessary childcare)