Lucinda D. Moore, appellee,
Thayne D. Moore, appellant.
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.
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.
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.
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.
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.
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.
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
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.
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.
from the District Court for Buffalo County: John H. Marsh,
D. Icenogle, of Bruner Frank, L.L.C., for appellant.
Heather Swanson-Murray, of Swanson Murray Law, L.L.C., P.C.,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
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.
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
Complaint to Modify
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.
Motions for Expert Evaluations
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.
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
Motion to Reduce Daycare Expenses to Judgment
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.
Thayne's Motion to Dismiss Without Prejudice
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
Neb. 592] (d) February 15, 2017, Order of Dismissal
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
Lucinda's Motion for Attorney Fees
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.
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.
Order to Alter or Amend June 19, 2017, Order
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.
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.
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