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Moore v. Moore

Supreme Court of Nebraska

March 22, 2019

Lucinda D. Moore, appellee,
Thayne D. Moore, appellant.

         1. Divorce: Attorney Fees: Appeal and Error. In an action involving a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

         2. Divorce: Child Support: Appeal and Error. In an action involving a martial dissolution decree, factual determinations as to childcare expenses incurred are reviewed de novo on the record for an abuse of discretion.

         3. Minors: Child Support. Supervision of children in the form of day camps, lessons, or activities may under the circumstances constitute childcare so long as such supervision is reasonable, in the child's best interests, and necessary due to employment or for education or training to obtain a job or enhance earning potential.

         4. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         5. Attorneys at Law: Trial: Stipulations: Parties. Stipulations voluntarily entered into between the parties to a cause or their attorneys, for the government of their conduct and the control of their rights during the trial or progress of the cause, will be respected and enforced by the courts, where such stipulations are not contrary to good morals or sound public policy.

         6. Courts: Trial: Stipulations: Parties. Courts will enforce valid stipulations unless some good cause is shown for declining to do so, especially where the stipulations have been acted upon so that the parties could not be placed in status quo.

         7. Divorce: Stipulations: Appeal and Error. As in other matters involving dissolution decrees, a court's decision whether to approve and [302 Neb. 589] honor a stipulation is reviewed de novo on the record for an abuse of discretion.

         8. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

         9. Divorce: Attorney Fees. In awarding attorney fees in a dissolution action, a court shall consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

          Appeal from the District Court for Buffalo County: John H. Marsh, Judge.

          John D. Icenogle, of Bruner Frank, L.L.C., for appellant.

          Heather Swanson-Murray, of Swanson Murray Law, L.L.C., P.C., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Freudenberg, J.

         I. NATURE OF CASE

         The ex-husband appeals from the district court's order that he reimburse his ex-wife for half of certain "work related daycare expense[s]" for the parties' three children, as required by the dissolution decree, and as required by Neb. Ct. R. § 4-214 (rev. 2016) of the Nebraska Child Support Guidelines, which states that "[c]are expenses for the child" shall be allocated to the obligor parent. The ex-husband asserts that none of the expenses that the ex-wife testified she incurred as a means of providing adult supervision for her children while she worked, consisting of day camps, overnight camps, lessons, sitters, and transportation to and from the same, qualified as "work related daycare expense[s]" or "[c]are expenses for the child." He argues they were instead merely "activities." The ex-husband also asserts that the district court erred in awarding to the [302 Neb. 590] ex-wife $3, 500 in attorney fees when the court found that the ex-husband's complaint to modify, which he voluntarily dismissed after the parties had their respective experts conduct psychological/custody evaluations of the children, was not frivolous. Finally at issue is whether the district court erred in ordering the ex-husband to pay $2, 500 toward the ex-wife's expert's evaluation fees, when the parties had stipulated that they would each pay their own expert's fees.


         1. Decree

         A decree of dissolution of the marriage of Lucinda D. Moore and Thayne D. Moore was entered on October 1, 2014. The decree ordered that Lucinda be given sole physical and legal custody over the parties' three minor children. One child was born in 2002, one in 2005, and one in 2006. Thayne was ordered to pay child support and "50% of said work related daycare expenses . . . within 10 days of being provided a receipt." He was also ordered to share in the children's medical expenses. Lucinda and Thayne were to inform each other of "activities or events" where a parent may participate. The order did not contain a provision specifically relating to payment of "activities or events."

         2. Complaint to Modify

         On September 10, 2015, Thayne filed a complaint to modify the decree due to a material change of circumstances. Thayne alleged that Lucinda was "unwilling to co-parent" with him and had been inflicting "substantial mental abuse" on their children. He asked the court to modify the decree by awarding sole physical and legal custody of the children to him. Lucinda generally denied the operative allegations of the complaint and asked that it be dismissed.

         (a) Motions for Expert Evaluations

         Lucinda moved for a "psychological/custody evaluation" of the children. Thayne joined the motion for a psychological/[302 Neb. 591] custody evaluation and nominated an expert to conduct the evaluation, proposing that both parties share jointly in the expense. Lucinda proposed Dr. Theodore DeLaet as the expert to conduct the evaluation instead. On May 2, 2016, the court granted the motions for psychological/custody evaluations but ordered the parties to stipulate who should conduct the evaluation and how the costs of the evaluation should be divided.

         Lucinda and Thayne were unable to reach an agreement on a single expert to perform the evaluation. They instead jointly stipulated that they would each use his or her own expert to conduct independent evaluations of the children and that they would each be solely responsible for his or her respective expert's fees and expenses. On June 3, 2016, the court issued an order approving the stipulation and providing that Lucinda and Thayne could have evaluations conducted by their respectively chosen experts, with Lucinda and Thayne to be solely responsible for their respective expert's fees and expenses.

         (b) Motion to Reduce Daycare Expenses to Judgment

         On January 30, 2017, Lucinda filed a "Motion to Reduce Daycare Expenses to Judgment," in which she asked the court to determine daycare expenses owed by Thayne to Lucinda and reduce such expenses to a judgment against Thayne.

         (c) Thayne's Motion to Dismiss Without Prejudice

         On February 15, 2017, the day before the scheduled hearing on Thayne's complaint for modification, Thayne moved to dismiss his complaint without prejudice. The motion to dismiss was made after the psychological/custody evaluations had been conducted. DeLaet's evaluation had not been available to Thayne until January 17, 2017. Neither Thayne's nor Lucinda's expert recommended a change in custody.

         [302 Neb. 592] (d) February 15, 2017, Order of Dismissal

         The court granted Thayne's motion to dismiss the same day that the motion was filed. The court ordered each party to bear his or her own costs. The court did not at that time take up Lucinda's motion to reduce daycare expenses to judgment.

         (e) Lucinda's Motion for Attorney Fees

         On February 21, 2017, Lucinda moved for an award of attorney fees incurred as a result of the dismissed complaint to modify and for such further relief as the court deemed equitable. Thayne responded with a motion, by "Special Appearance," to dismiss Lucinda's motion for attorney fees on the ground that it was the filing of a new lawsuit without service of process.

         By an order dated June 19, 2017, the court denied Lucinda's motion for attorney fees. It still had not resolved her motion to reduce daycare expenses to judgment, however.

         (f) Order to Alter or Amend June 19, 2017, Order

         Lucinda timely moved to vacate, alter, or amend the June 19, 2017, order on the ground that she had been denied an opportunity to be heard on her motion for attorney fees. On July 19, the court altered and amended its June 19 order.

         The court took stock of Lucinda's unresolved motion to reduce daycare expenses to judgment and concluded that it was not a proper motion within the modification proceedings brought by Thayne. The court explained that the question of daycare expenses was not raised in the complaint or in Lucinda's answer to the complaint. The court concluded that the "motion" was a request for relief, which required a complaint and service of process. Thus, the court did not consider the motion as being properly before it.

         In contrast, the court considered Lucinda's motion for attorney fees to be incidental to Thayne's motion to dismiss. Further, the court considered Thayne's motion to dismiss to be [302 Neb. 593] a general appearance. It ...

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