WALLACE R. McCULLOUGH, APPELLANT, V. MICHELLE A. McCULLOUGH, APPELLEE.
Nos. S-16-1086, S-16-1187, S-17-037
NEBRASKA SUPREME COURT
April 26, 2018
299 Neb. 719
NEBRASKA SUPREME COURT ADVANCE SHEETS; 299 NEBRASKA REPORTS
Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court‘s resolution of issues of law is reviewed de novo, (2) the trial court‘s factual findings are reviewed for clear error, and (3) the trial court‘s determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion. - Attorney Fees: Appeal and Error. A trial court‘s decision awarding or denying attorney fees will be upheld on appeal absent an abuse of discretion.
- Judgments: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.
- Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.
- Judges: Recusal: Appeal and Error. A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.
- Contempt: Final Orders. An order of contempt in a postjudgment proceeding to enforce a previous final judgment is properly classified as a final order.
- Contempt. Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party.
Courts: Jurisdiction: Divorce: Contempt. A court‘s continuing jurisdiction over a dissolution decree includes the power to provide equitable relief in a contempt proceeding. - Contempt: Courts: Equity. Contempt proceedings may both compel obedience to orders and administer the remedies to which the court has found the parties to be entitled. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation.
- Contempt: Words and Phrases. Civil contempt requires willful disobedience as an essential element. “Willful” means the violation was committed intentionally, with knowledge that the act violated the court order. If it is impossible to comply with the order of the court, the failure to comply is not willful.
- Words and Phrases: Appeal and Error. Willfulness is a factual determination to be reviewed for clear error.
- Contempt: Proof: Evidence: Presumptions. Outside of statutory procedures imposing a different standard or an evidentiary presumption, all elements of contempt must be proved by the complainant by clear and convincing evidence and without any presumptions.
- Contempt: Costs: Attorney Fees. Costs, including reasonable attorney fees, can be awarded in a contempt proceeding.
- Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
Appeals from the District Court for Sarpy County: DANIEL E. BRYAN, JR., Judge. Judgments in Nos. S-16-1086 and S-17-037 affirmed. Appeal in No. S-16-1187 dismissed.
William D. Gilner for appellant.
Edith T. Peebles and Tosha Rae D. Heavican, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, and FUNKE, JJ.
MILLER-LERMAN, J.
NATURE OF CASE
In these three consolidated appeals, Wallace R. McCullough appeals orders entered by the district court for Sarpy County
STATEMENT OF FACTS
On March 22, 2010, the district court for Sarpy County entered a decree dissolving Wallace and Michelle‘s marriage. In the decree of dissolution, the district court ordered, inter alia, that legal and physical custody of the couple‘s children be awarded to Michelle, subject to Wallace‘s parenting time; that Wallace pay Michelle child support of $3,005 per month; that Wallace pay a share of childcare expenses incurred by Michelle; and that Wallace pay Michelle $552,124.89 to equalize the property division, payable at a rate of $50,000 per year plus interest until paid in full.
On June 12, 2012, Michelle filed a complaint for modification of the decree of dissolution. She requested, inter alia, that Wallace‘s parenting time be supervised and that proceeds from the sale of certain property be reassigned to her. On July 30, Wallace filed an answer and a counterclaim in which he requested, inter alia, that he be awarded sole custody of the children. On August 6, Michelle filed an answer to Wallace‘s counterclaim in which she requested the counterclaim be dismissed. On August 7, Wallace filed an amended answer and counterclaim in which he further requested, inter alia, a change in his child support obligation based on a change in income and that he be given credit for amounts totaling $268,400 that he alleged should be treated as having been paid toward the property settlement. On January 21, 2014, Wallace filed another amended answer and counterclaim in which he made additional allegations and requests.
After the hearing on Michelle‘s complaint for contempt, the district court entered an order on September 30, 2016. In the order, the court stated that Wallace had asked to continue the contempt proceedings with regard to child support payments on the basis that the amended counterclaim he had filed on January 21, 2014, in which he sought a reduction of his child support obligation, was still pending. The court noted that Wallace had not prosecuted that counterclaim; nevertheless, the court granted a continuance of the portion of the contempt proceeding that pertained to child support. The court scheduled a trial for December 8, 2016, on Wallace‘s amended answer and counterclaim, as well as on Michelle‘s June 12, 2012, complaint for modification. The court stated that it would consider the child support portion of the complaint for contempt at the December 8 trial. The court further stated that on February 21, 2014, it had ordered Wallace to undergo an evaluation in connection with his request for modification of the children‘s custody; the court ordered Wallace to submit the completed evaluation by October 17, 2016.
In addition to the foregoing, the September 30, 2016, order also stated that the court had heard testimony regarding the remaining portions of Michelle‘s contempt allegations against Wallace. The court then found Wallace to be in willful and contumacious violation of the decree of dissolution in two respects: (1) He had failed to pay required childcare expenses totaling $5,031.23, and (2) he had failed to pay property equalization installments, with interest, totaling $317,314.99. The court ordered Wallace to pay Michelle‘s attorney fees totaling
Wallace filed a motion for a new hearing or reconsideration of the September 30, 2016, order. On November 4, the district court denied the motion.
On November 17, 2016, Wallace filed a notice of appeal in which he stated his intent to appeal the September 30 and November 4 orders. That appeal is docketed as case No. S-16-1086.
On November 18, 2016, the district court held a hearing to consider a motion by Michelle to dismiss part of Wallace‘s counterclaim for modification of the decree of dissolution. Michelle argued that the counterclaim should be dismissed because Wallace had failed to comply with the court‘s February 21, 2014, order to undergo an evaluation and that he had failed to submit such evaluation by October 17, 2016, as required in the court‘s September 30 order. At the hearing, Wallace admitted the evaluation had not been completed, but he asserted that he had been confused as to the date by which the evaluation was to be submitted and that he had an evaluation scheduled for an unspecified date in December. Wallace further argued that because he had filed a notice of appeal on November 17 with regard to the court‘s September 30 and November 4 orders, all proceedings in this matter, including those issues set for trial on December 8, should be stayed pending the appeal.
On November 28, 2016, the court entered an order ruling on matters addressed at the November 18 hearing. The court stated that the September 30 order “dealt solely with
On November 29, 2016, Wallace filed a motion to set a supersedeas bond pursuant to
On December 8, 2016, the court held a hearing and entered an order ruling on Michelle‘s complaint for contempt with regard to child support. The court found Wallace to be in willful contempt of the portion of the decree of dissolution that required him to pay child support of $3,005 per month. The court ordered Wallace to be subject to a purge plan pursuant to which he would pay Michelle $2,000 of back child support per month, in addition to the $3,005 per month child support he was already required to pay, beginning January 1, 2017, and continuing the first of each month until back child support was paid in full. The court ordered that if Wallace failed to pay the required child support and the additional back child support on the first of each month, he would be “incarcerated no more than thirty (30) days each month.” The court entered a separate money judgment against Wallace and in favor of Michelle for attorney fees and costs of $3,131.75.
On December 30, 2016, Wallace filed a pleading in which he made three motions. The pleading included the following motions: (1) a motion for the judge to recuse himself, (2) a motion to set aside or reconsider the December 8 order of contempt, and (3) a “motion for judgment” in his favor on his amended counterclaim filed January 21, 2014.
With regard to the motion for recusal, Wallace alleged that on October 7, 2016, the judge had signed an arrest warrant against Wallace on the basis that on October 1, Wallace had failed to make the purge payment required under the September 30 order. Wallace alleged that the judge issued the warrant despite knowing that Wallace had attempted to make the payment on September 30 but that his check had been returned by the clerk of the district court because the clerk had not yet received the purge order. The record indicates that Michelle filed an application for the arrest warrant on
With regard to the “motion for judgment” on his counterclaim, Wallace alleged that although the court on November 30, 2016, had granted Michelle leave to file an answer to his January 21, 2014, counterclaim out of time, she had not filed an answer as of December 30, 2016, and that therefore, he was entitled to judgment in his favor on his counterclaim.
On January 6, 2017, the court entered an order in which it denied Wallace‘s motion to recuse and his motion to set aside or reconsider the December 8, 2016, order. The court also stated that it was “without jurisdiction to hear [Wallace‘s] Motion for Judgment on the Pleadings with respect to the September 30, 2016 Order” and that Wallace‘s “Motion for Judgment on the Pleadings is denied with respect to the December 8, 2016 Order.”
The court in the January 6, 2017, order did not explicitly refer to Wallace‘s January 21, 2014, amended counterclaim for modification, upon which Wallace sought judgment on the pleadings in his December 30, 2016, motion. We note in this regard that as discussed above, in the November 28 order, the court had stated that “pending applications for modifications [of the decree of dissolution] or motions to dismiss portions of such applications are stayed pending the appeal” of the September 30 contempt order.
On January 9, 2017, Wallace filed a notice of appeal in which he stated his intent to appeal the December 8, 2016, and January 6, 2017, orders. That appeal is docketed as case No. S-17-037.
We moved Wallace‘s three appeals to our docket and consolidated them. To summarize, Wallace‘s three appeals are: (1) case No. S-16-1086, in which he appeals the September 30, 2016, order finding him in contempt for failing to pay childcare and property equalization payments required under
ASSIGNMENTS OF ERROR
In case No. S-16-1086, Wallace claims that the district court abused its discretion when it found him in contempt for failing to pay childcare and property equalization payments required under the decree of dissolution. He argues that he could not be in contempt, because (1) his complaint for modification of the decree was still pending and (2) the judgment went dormant when Michelle failed to execute on it and the judgment had not been revived. He also claims that because he should not have been found to be in contempt, the court abused its discretion when it awarded attorney fees to Michelle.
In case No. S-16-1187, Wallace claims that the district court abused its discretion when it set a supersedeas bond of $45,000. He argues that under
In case No. S-17-037, Wallace claims that the district court abused its discretion when it (1) found him in contempt of the child support provisions of the decree of dissolution when his complaint for modification of child support was still pending, (2) overruled his motion for recusal, (3) overruled his
STANDARDS OF REVIEW
[1] In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court‘s resolution of issues of law is reviewed de novo, (2) the trial court‘s factual findings are reviewed for clear error, and (3) the trial court‘s determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion. State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018).
[2,3] A trial court‘s decision awarding or denying attorney fees will be upheld on appeal absent an abuse of discretion. In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018). A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.
[4] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017).
[5] A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. Kalkowski v. Nebraska Nat. Trails Museum Found., 290 Neb. 798, 862 N.W.2d 294 (2015).
ANALYSIS
Relevant Nebraska Jurisprudence
Regarding Contempt.
[6] We note first that in Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), disapproved
[7-9] Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party. Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016). A court‘s continuing jurisdiction over a dissolution decree includes the power to provide equitable relief in a contempt proceeding. Id. Contempt proceedings may both compel obedience to orders and administer the remedies to which the court has found the parties to be entitled. Id. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation. Id.
[10-12] Civil contempt requires willful disobedience as an essential element. State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018). “Willful” means the violation was committed intentionally, with knowledge that the act violated the court order. Id. If it is impossible to comply with the order of the court, the failure to comply is not willful. Id. Willfulness is a factual determination to be reviewed for clear error. Id. Outside of statutory procedures imposing a different standard or an evidentiary presumption, all elements of contempt must be proved by the complainant by clear and convincing evidence and without any presumptions. Id.
When It Found Wallace to Be in Contempt of the
Decree With Regard to Equalization Payments
and Childcare Expenses or When It Awarded
Attorney Fees to Michelle.
In case No. S-16-1086, Wallace claims that the district court abused its discretion when it found him in contempt for failing to pay childcare and property equalization payments required under the decree of dissolution and when it awarded attorney fees to Michelle. We find no merit to these assignments of error.
In case No. S-16-1086, Wallace contends that the district court could not have found him to be in willful contempt. We note first that Wallace does not dispute that he failed to make the payments required under the decree of dissolution entered in 2010. Instead, he basically argues that such failure cannot form the basis for a finding of willful contempt, because he had reason to think he was not required to make the payments. He first notes that the court had not yet ruled on his counterclaim for modification of the decree, and he argues that if the court were to rule in his favor and modify the decree, he might no longer owe the sums he has not paid. As an alternative argument, Wallace claims that Michelle let the money judgments from the decree of dissolution go dormant and that therefore, he was not obligated to pay the judgments. We find both arguments to be without merit.
Wallace claims first that he could not be found to be in willful contempt while his counterclaim for modification of the decree of dissolution was still pending. He argues that if his counterclaim were successful, he would no longer owe the amounts required under the decree of dissolution, and he reasons that he was not required to pay those amounts until the counterclaim was decided by the court. Wallace points to no authority to the effect that an application for modification of a decree of dissolution suspends the judgment and associated payments. To the contrary, we have ruled that under the proper
Wallace alternatively claims that he could not be found to be in willful contempt with respect to the equalization payment, because Michelle failed to execute on the judgment within 5 years as required by
The district court rejected Wallace‘s assertion that Michelle failed to execute on the property equalization judgment, and the record supports that determination. The decree of dissolution was filed on March 22, 2010, and the record indicates that after entry of the decree, Michelle made attempts to collect sums due her under the decree. Such efforts included a contempt proceeding in 2011 and a motion Michelle filed in 2012 which resulted in an order filed by the court on August 15, 2012, which, inter alia, required proceeds from a sale of property to be applied to equalization payments. Michelle filed the present contempt proceeding on June 8, 2016, so there does not appear to have been a 5-year period in which Michelle failed to attempt to execute on the judgment. We therefore
[13] Finally, regarding the award of attorneys in case No. S-16-1086, we note first that costs, including reasonable attorney fees, can be awarded in a contempt proceeding. Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012). Wallace does not assert that Michelle failed to prove her fees or that the amount was unreasonable. Instead, his sole argument is that attorney fees should not have been awarded, because he should not have been found to be in contempt of the decree of dissolution. Because we have concluded above that the court did not err when it found Wallace to be in contempt, we further conclude that the court did not abuse its discretion when it awarded attorney fees to Michelle.
Having rejected Wallace‘s assignments of error in case No. S-16-1086, we affirm the September 30, 2016, order finding Wallace to be in contempt and awarding attorney fees. We also affirm the November 4 order overruling Wallace‘s motion for reconsideration.
Case No. S-16-1187: Order Setting Amount of
Supersedeas Bond Was Not Separately Appealable,
and Issues Regarding Supersedeas Bond Are
Moot Following Disposition of Appeal of
Order Sought to Be Stayed.
In case No. S-16-1187, Wallace claims that the district court abused its discretion when it set a supersedeas bond of $45,000. He argues that under
[14] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017). Michelle asserts that the court‘s November 30, 2016, order setting the amount of the supersedeas bond is not an appealable order. Michelle relies on Green v. Morse, 57 Neb. 798, 78 N.W. 395 (1899), in which this court held that an order fixing the amount of a supersedeas bond was not appealable, because it did not affect a substantial right. Michelle also cites Waite v. City of Omaha, 263 Neb. 589, 594-95, 641 N.W.2d 351, 355 (2002), in which we said, “The effect of a supersedeas bond is to either maintain an order in force or prevent the execution of an order until a case is finally heard and determined, but not to make the underlying order, if otherwise nonfinal, into a final and appealable order.”
We read these cases, and others not recited here, as standing for the proposition that an order ruling on a request for a supersedeas bond is not in itself an appealable order and that a request for a supersedeas bond to stay execution of an otherwise nonfinal order does not convert that underlying order into an appealable order. However, the appellate courts in this state have considered issues regarding the setting of a supersedeas bond when the underlying order sought to be stayed by the bond was an appealable order. See, Buffalo County v. Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996); The Exchange Bank v. Mid-Nebraska Computer Services, Inc., 188 Neb. 673, 199 N.W.2d 5 (1972). See, also, Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008); World Radio Lab. v. Coopers & Lybrand, 2 Neb. App. 747, 514 N.W.2d 351 (1994) (determining that appellate court had jurisdiction to hear and determine appellee‘s motion to increase supersedeas
In the present case, Wallace did not use the procedures just described and instead chose to separately appeal the order setting the amount of the supersedeas bond. Because that order is not separately appealable, we conclude that the appeal in case No. S-16-1187 must be dismissed for lack of jurisdiction.
Our precedent indicates that Wallace could have raised issues regarding the supersedeas bond in case No. S-16-1086, the appeal of the order he sought to have stayed. However, Wallace did not file a motion in the supersedeas case, case No. S-16-1086, requesting a change in the amount of the supersedeas bond, and therefore, there was not a reason for this court to consider that issue in case No. S-16-1086 prior to considering the merits of that appeal. Furthermore, if we were to treat Wallace‘s assignment of error in case No. S-16-1187 claiming the bond was excessive as though it had been an assignment of error in case No. S-16-1086, the issue is now moot because of our resolution of case No. S-16-1086 affirming the contempt order Wallace sought to stay.
In the present case, Wallace claims that the court abused its discretion when it set a supersedeas bond of $45,000. He argues that under
For completeness and to dispel potential confusion, we distinguish the supersedeas bond in this dissolution proceeding from supersedeas bonds in probate cases. As the Nebraska Court of Appeals stated in In re Estate of Sehi, 17 Neb. App. 697, 772 N.W.2d 103 (2009), in an ordinary appeal from a judgment in a case originating in the district court, the appellant may choose whether to seek a supersedeas bond, but in appeals from probate cases, the law in some instances imposes a mandatory requirement of supersedeas. In this dissolution proceeding, however, Wallace had the option whether or not to seek a supersedeas bond, and therefore, the standards that govern the supersedeas bond in this case do not necessarily apply to the mandatory supersedeas bonds required under probate statutes.
For the reasons explained above, we dismiss the appeal in case No. S-16-1187 for lack of jurisdiction, and we need not consider issues regarding the setting of the supersedeas bond.
Case No. S-17-037: District Court Did Not Err
When It Found Wallace to Be in Contempt of
the Decree With Regard to Child Support,
Nor Did It Err in Its Other Rulings.
In case No. S-17-037, Wallace claims that the district court abused its discretion when it (1) found him in contempt of the
Regarding the finding of contempt and the award of attorney fees, our analysis in this appeal is similar to that in case No. S-16-1086 above. We note that in case No. S-17-037, Wallace does not argue, as he did in case No. S-16-1086, that the child support judgment was dormant; as noted above, he recognizes that child support is an exception to the operation of
Similar to his argument in case No. S-16-1086, Wallace‘s sole argument with regard to the attorney fees awarded to Michelle in this appeal is that fees should not have been awarded, because he should not have been found to be in contempt. As we concluded in case No. S-16-1086, we conclude in this appeal that because the court did not err when it found Wallace in contempt of the child support provisions of the decree of dissolution, it also did not abuse its discretion when it awarded attorney fees to Michelle.
Regarding the motion for recusal, Wallace argues that the district court judge was biased against him. He asserts that
Finally, Wallace claims the district court erred when it overruled his “motion for judgment” on his counterclaim for modification of the decree of dissolution. Michelle contends that an order overruling a “motion for judgment” is not an appealable order. Whether or not such an order is appealable, we note that it does not appear that the district court ruled on Wallace‘s “motion for judgment” on the modification. To the contrary, the court‘s only references in the January 6, 2017, order to a “motion for judgment” were its statement that it was “without jurisdiction to hear [Wallace‘s] Motion for Judgment on the Pleadings with respect to the September 30, 2016 Order” and that Wallace‘s “Motion for Judgment on the Pleadings is denied with respect to the December 8, 2016 Order.” Further, we note that in an order filed on November 28, 2016, the court stated that because Wallace had appealed the contempt order filed on September 30, “pending applications for modifications [of the decree of dissolution] or motions to dismiss portions of such applications are stayed pending the appeal.” Therefore, it
Having rejected Wallace‘s assignments of error in case No. S-17-037, we affirm the December 8, 2016, and January 6, 2017, orders.
CONCLUSION
In the contempt cases, cases Nos. S-16-1086 and S-17-037, we reject Wallace‘s assignments of error and affirm the orders appealed. Because of our disposition in case No. S-16-1086 of the order sought to be stayed by the supersedeas bond, issues raised by Wallace in case No. S-16-1187 regarding the setting of the amount of the supersedeas bond are now moot. In any event, in case No. S-16-1187, we conclude that the order setting the amount of a supersedeas bond was not separately appealable, and we dismiss the appeal for lack of jurisdiction.
JUDGMENTS IN NOS. S-16-1086 AND S-17-037 AFFIRMED.
APPEAL IN NO. S-16-1187 DISMISSED.
WRIGHT and KELCH, JJ., not participating.