Becher v. Becher , 311 Neb. 1 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BECHER v. BECHER
Cite as 311 Neb. 1Sonia Becher, appellee, v.
Mark A. Becher, appellant.
___ N.W.2d ___
Filed February 25, 2022. No. S-20-737.
1. 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 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.
2. Judgments: Appeal and Error. The adoption of a party’s proposed
findings does not require an appellate court to set aside the deference
ordinarily given to the trial judge’s factual findings.
3. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
4. Contempt: Sentences. A civil sanction is coercive and remedial; the
contemnors carry the keys of their jail cells in their own pockets,
because the sentence is conditioned upon continued noncompliance and
is subject to mitigation through compliance.
5. Contempt. The ability to comply with a contempt order marks a divid-
ing line between civil and criminal contempt.
6. ____. In order for the punishment to retain its civil character, the con-
temnor must, at the time the sanction is imposed, have the ability to
purge the contempt by compliance and either avert punishment or, at any
time, bring it to an end.
7. Contempt: Sentences. A present inability to comply with a contempt
order is a defense, not necessarily to contempt, but to incarceration.
8. Judgments: Collateral Attack. When a judgment is attacked in a
way other than by proceeding in the original action to have it vacated,
reversed, or modified, or by a proceeding in equity to prevent its
enforcement, the attack is a collateral attack.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BECHER v. BECHER
Cite as 311 Neb. 19. ____: ____. Even if erroneous, a judgment is not subject to collateral
attack unless it is void, such as would be the case where a judgment is
entered without jurisdiction over the person or subject matter.
10. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a
court which lacks subject matter jurisdiction is void and may be attacked
at any time in any proceeding.
11. Judgments: Contempt. Refusal to obey a void order or judgment is
not contempt.
12. Actions: Waiver: Appeal and Error. A decision made at a previous
stage of litigation, which could have been challenged in the ensuing
appeal but was not, becomes the law of the case; the parties are deemed
to have waived the right to challenge that decision.
13. Contempt: Words and Phrases. Willful disobedience is an essential
element of contempt; “willful” means the violation was committed
intentionally, with knowledge that the act violated the court order.
14. Contempt: Proof: Presumptions. Outside of statutory procedures
imposing a different standard or an evidentiary presumption, the com-
plainant must prove all elements of contempt by clear and convincing
evidence.
15. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial process.
16. Estoppel. The doctrine of judicial estoppel protects the integrity of the
judicial process by preventing a party from taking a position inconsistent
with one successfully and unequivocally asserted by the same party in a
prior proceeding.
17. ____. Judicial estoppel prevents parties from gaining an advantage by
taking one position in a proceeding and then switching to a different
position when convenient in a later proceeding.
18. ____. Judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doc-
trine precludes a contradictory position without examining the truth of
either statement.
19. Judgments: Estoppel: Appeal and Error. An appellate court reviews a
court’s application of judicial estoppel to the facts of a case for abuse of
discretion and reviews its underlying factual findings for clear error.
20. Divorce: Final Orders. A decree is a judgment, and once a decree for
dissolution becomes final, its meaning is determined as a matter of law
from the four corners of the decree itself.
21. Judgments: Final Orders: Words and Phrases. A “judgment” is a
court’s final consideration and determination of the respective rights and
obligations of the parties to an action as those rights and obligations
presently exist.
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BECHER v. BECHER
Cite as 311 Neb. 122. Equity: Judgments: Interest. A court of equity has discretion to allow
or withhold interest as is reasonable and just, except in cases where
interest is recoverable as a matter of right.
23. Courts: Restitution: Contempt. Through its inherent powers of con-
tempt, a court may order restitution for damages incurred as a result of
failure to comply with a past order.
24. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris-
diction over a dissolution decree includes the power to provide equitable
relief in a contempt proceeding.
25. Courts: Equity. Where a situation exists which is contrary to the prin-
ciples 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.
26. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney
fees, can be awarded in a contempt proceeding when there has been a
finding of contempt.
27. Contempt: Attorney Fees. Attorney fees in contempt cases fall under a
court’s inherent power to do all things necessary to enforce its judgment.
28. 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.
29. Judgments: Words and Phrases. A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly unten-
able insofar as they unfairly deprive a litigant of a substantial right and
a just result.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed as modified.
Adam E. Astley, of Astley Putnam, P.C., L.L.O., for appellant.
Sally A. Rasmussen, of Mattson Ricketts Law Firm, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Mark A. Becher appeals a district court order that found
him in contempt for failure to pay various expenses following
his divorce from Sonia Becher. He claims that he should not
be required to pay those expenses, the associated interest, or
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BECHER v. BECHER
Cite as 311 Neb. 1attorney fees. We modify the provisions of the contempt order
pertaining to certain expenses but otherwise affirm.
I. BACKGROUND
Mark and Sonia were married in 1991. They had three
children together and amassed considerable property. The dis-
solution of their marriage in 2015 has resulted in a great
deal of litigation, including multiple contempt proceedings
and three prior appeals. See, Becher v. Becher, 302 Neb. 720,
925 N.W.2d 67 (2019); Becher v. Becher, 299 Neb. 206, 908
N.W.2d 12 (2018); Becher v. Becher, 24 Neb. App. 726, 897
N.W.2d 866 (2017), reversed in part 299 Neb. 206, 908 N.W.2d
12 (2018).
Mark now appeals a contempt order, entered on September
10, 2020. This order arose from Sonia’s motion for citation of
contempt filed January 16, 2017; her supplemental motion filed
July 3, 2019; and the district court’s corresponding orders to
show cause. On appeal, Mark challenges aspects of the con-
tempt order pertaining to the children’s 2016 medical expenses,
the children’s future medical expenses, real estate taxes, costs
associated with a wilderness therapy program for one of the
children, interest, and Sonia’s attorney fees.
II. ASSIGNMENTS OF ERROR
Mark assigns, consolidated and restated, that the district
court erred in (1) finding him in contempt for failure to pay
for a portion of (a) the children’s 2016 medical expenses, (b)
real estate taxes, and (c) the wilderness therapy program, and
requiring him to pay for his share of those expenses as part of
the purge plan; (2) requiring Mark to pay for his share of the
children’s future medical expenses as part of the purge plan;
(3) assessing interest; and (4) ordering Mark to pay Sonia’s
attorney fees.
III. STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks
remedial relief for an alleged violation of a court order,
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BECHER v. BECHER
Cite as 311 Neb. 1an 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 determina-
tions of whether a party is in contempt and of the sanction to
be imposed are reviewed for abuse of discretion. Vyhlidal v.
Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).
Mark argues that in this case we should deviate from the
foregoing standard of review and not give the trial court’s fac-
tual findings the deference our clear error standard would ordi-
narily require. Such deference is not appropriate, he asserts,
because the district court’s contempt order mirrors a proposed
order submitted by Sonia’s counsel.
[2] We have no direct proof of the purported ­word-for-word
match between a proposed order and the district court’s order:
Mark acknowledges Sonia’s proposed order is not in our
record. Undeterred by the absence of the order in the record,
Mark claims the “tone” of the district court’s order makes it
“readily apparent” that Sonia’s counsel must have drafted it.
Brief for appellant at 20. We need not, however, spend time
assessing Mark’s claim. Even if the district court adopted
a proposed contempt order submitted by Sonia’s counsel in
its entirety, we would not depart from our usual standard of
review. Findings prepared by counsel and adopted verbatim by
the trial judge are formally the judge’s, and the adoption of a
party’s proposed findings does not require an appellate court
to set aside the deference ordinarily given to the trial judge’s
factual findings. See Wayne L. Ryan Revocable Trust v. Ryan,
308 Neb. 851, 957 N.W.2d 481 (2021). See, also, Anderson v.
Bessemer City, 470 U.S. 564, 572, 105 S. Ct. 1504, 84 L. Ed.
2d 518 (1985) (“even when the trial judge adopts proposed
findings verbatim, the findings are those of the court and may
be reversed only if clearly erroneous”).
Other standards of review pertaining to specific assignments
of error are discussed in the analysis section below.
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BECHER v. BECHER
Cite as 311 Neb. 1IV. ANALYSIS
1. Children’s 2016 Medical Expenses
and Future Medical Expenses
(a) Factual Background
The dissolution decree ordered Mark to pay 90 percent of
the children’s medical expenses that were not reimbursed by
insurance, after the first $480 per year, within 10 days of proper
presentation of the bill.
Sonia’s 2017 motion for citation of contempt and her 2019
supplemental motion alleged Mark had not paid his share of the
children’s 2016 medical expenses presented to him by Sonia.
At trial, Sonia put on evidence that Mark had not reim-
bursed her $864.76 for his share of the children’s 2016 medi-
cal expenses. The parties later stipulated, however, that Mark
had paid $886.05 into the district court on March 15, 2017,
just prior to the first day of trial. The district court’s receipt
described the payment as “Judgment (General).” Mark testi-
fied that he paid this sum for the children’s 2016 medical
expenses.
In its order entered September 10, 2020, the district court
found Mark in contempt of the provisions of the decree requir-
ing him to pay the 2016 medical expenses within 10 days of
proper presentation by Sonia. Addressing Mark’s 2017 pay-
ment of $886.05 into the court, the district court observed that
neither the amount nor the description of that payment tied it
to the 2016 medical expenses, which had not been reduced to a
general judgment, and that therefore, the evidence did not sup-
port a finding that Mark paid them. The district court continued
that even if this eventual payment was intended as payment
of the 2016 medical expenses, it did not prevent a finding of
contempt. Citing an earlier order finding Mark in contempt,
entered on May 11, 2016, the district court characterized
Mark’s failure to pay his share of the children’s 2016 health
care expenses pursuant to the terms of the decree as part of an
established pattern of recalcitrance. It then stated:
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311 Nebraska Reports
BECHER v. BECHER
Cite as 311 Neb. 1Because the [contempt order entered May 11, 2016,] was
not sufficient to persuade [Mark] to pay his share of the
children’s medical expenses on time, or at all, additional
language in the purge plan will obligate [Mark] to pay all
future medical expenses within 10 days of proper presen-
tation until the youngest child turns 19. Hopefully, this
will eradicate the need to file serial contempt actions for
non-payment of the children’s health care expenses.
The district court committed Mark to a sentence of 60 days
in jail, which sentence would remain suspended so long as
Mark complied with the purge plan. The purge plan required
Mark to pay the 2016 health care expenses of $864.76 within
10 days, plus interest. Also as part of the purge plan, the dis-
trict court ordered, “From the date of this order until the last
of the parties’ minor children reaches the age of 19, Mark . . .
shall pay his share of the children’s future health care expenses
within 10 days of proper presentation of the same by [Sonia],
as ordered in the parties’ decree.” The parties’ youngest child
was born in 2008.
(b) Analysis
(i) 2016 Medical Expenses
Given the evidence and the parties’ stipulation, Mark asserts
that the district court erred in finding him in contempt for fail-
ing to pay the children’s 2016 medical expenses and not credit-
ing him with the $886.05 he paid toward those expenses. Sonia
concedes that Mark should be given credit for the $886.05
that the parties stipulated he paid into the district court in
2017 and that the provision of the purge plan ordering Mark
to pay $864.76 for 2016 medical expenses should be elimi-
nated, but she contends that no other modifications of the order
are warranted.
[3] We accept Sonia’s concession that Mark should be given
credit for the payment the parties stipulated he paid into the
district court and that the provision of the purge plan order-
ing Mark to pay those medical expenses should be eliminated.
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311 Nebraska Reports
BECHER v. BECHER
Cite as 311 Neb. 1As for Sonia’s contention that Mark should still be held in
contempt for his late payment of the children’s 2016 medical
expenses, we disagree. Civil contempt proceedings are insti-
tuted 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. Johnson v. Johnson, 308
Neb. 623, 956 N.W.2d 261 (2021). When Mark paid the 2016
medical expenses, however late, there was nothing more that
could be done to fulfill the requirements of the decree. The
subsequent citation of contempt, therefore, could not serve
the purpose of the civil contempt remedy and was an abuse of
discretion. Accordingly, we modify the contempt order to strike
paragraph 17, finding Mark in contempt for failing to pay those
expenses, and paragraph 44(b), incorporating those expenses
into the purge plan, as well as the reference to paragraph 44(b)
in paragraph 45.
(ii) Future Medical Expenses
Mark also argues that the district court erred in requiring
him to pay his share of the children’s future medical expenses
as part of the purge plan. Mark argues that the provision does
not allow consideration of his present ability to comply or fac-
tors that might lead to noncompliance.
We conclude it was an abuse of discretion to require Mark
to pay his share of future medical expenses as part of the purge
plan. Although we recognize the district court’s intent to craft
a purge plan that would “preserve and enforce” Sonia’s rights
under the decree, see Johnson, 308 Neb. at 630, 956 N.W.2d at
266, the future medical provision otherwise conflicts with the
principles of civil contempt.
As we read the district court’s contempt order, it would
require that Mark be committed to jail if, at any time before the
last of the parties’ children turned 19 years of age, he failed to
pay any medical expense for which he was responsible under
the decree within 10 days of Sonia’s presenting him with the
expense. As we will explain, this arrangement runs contrary to
our civil contempt jurisprudence.
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BECHER v. BECHER
Cite as 311 Neb. 1[4-7] A civil sanction is coercive and remedial; the con-
temnors carry the keys of their jail cells in their own pockets,
because the sentence is conditioned upon continued noncompli-
ance and is subject to mitigation through compliance. Sickler v.
Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). The ability to
comply with a contempt order marks a dividing line between
civil and criminal contempt. Id. In order for the punishment to
retain its civil character, the contemnor must, at the time the
sanction is imposed, have the ability to purge the contempt by
compliance and either avert punishment or, at any time, bring
it to an end. Id. A present inability to comply with a contempt
order is a defense, not necessarily to contempt, but to incar-
ceration. Id.The order suspending Mark’s sentence on the condition that
he comply with the decree’s medical expense provisions in
the future creates the possibility that Mark could be commit-
ted to jail even if he lacks the ability to pay the expenses. At
the time the purge plan was entered, the district court could
not know the extent of the future medical expenses or Mark’s
future resources to pay them. Mark also did not have the abil-
ity to purge the contempt at the time the sanction was imposed
because future medical expenses had not yet arisen.
Further, we do not believe the future medical expense
provision could lawfully accomplish what the district court
intended. In its contempt order, the district court stated that it
would include the future medical expense provision as part of
the purge plan in the hopes that it would eliminate the need
for future contempt proceedings to address nonpayment of the
children’s medical expenses. To the extent the district court
envisioned that its contempt order would result in the auto-
matic issuance of a commitment order in the event Mark failed
to pay medical expenses as required by the decree in the future
without any additional hearing, that would violate due proc­
ess. See, Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla.
App. 1989); Tucker v. Tucker, 10 Ohio App. 3d 251, 252, 461
N.E.2d 1337, 1339 (1983) (“insofar as [a purge plan] purports
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BECHER v. BECHER
Cite as 311 Neb. 1to regulate future conduct, it simply amounts to the court’s
reaffirmation of [the dissolution decree] and can have no effect
since any effort to punish a future violation of the [decree]
would require new notice, hearing, and determination”). If, on
the other hand, Mark is afforded due process in the form of an
additional hearing regarding any future alleged violation of the
decree, the district court’s aim of avoiding successive proceed-
ings will not be achieved.
We understand the district court’s impulse to ensure that
Mark complies with the medical expense provisions of the
decree in the future. However, the district court’s ordinary
powers of contempt are sufficient to accomplish that purpose:
If Mark willfully refuses to comply with the decree in the
future, future contempt actions will be available. This may
result in the “serial contempt actions” that the district court
sought to avoid, but additional proceedings would be necessary
in order for the sanction to retain its civil character and afford
due process.
To the extent that the district court found Mark in contempt
and imposed a sanction related to future health care expenses,
it abused its discretion. We modify the contempt order to
strike paragraph 18, referring to future medical expenses, and
paragraph 44(e), the future medical expenses provision of the
purge plan.
2. Appellate Record Dispute
Before we take up Mark’s other assignments of error, we
stop to briefly address a dispute between the parties regarding
the materials that we may consider in resolving those assign-
ments of error.
The parties pursued contempt actions against each other
during the same timeframe. The trial that preceded the
September 2020 contempt order from which Mark now appeals
was continued multiple times. While the trial was pending,
Mark initiated his own contempt proceedings and a related
request for declaratory relief, resulting in hearings and orders.
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BECHER v. BECHER
Cite as 311 Neb. 1Although some of the issues in the parties’ separate contempt
proceedings were related, the matters were addressed at sepa-
rate hearings.
For the current appeal, Mark’s praecipe for transcript and
praecipe for a bill of exceptions requested pleadings, orders,
and evidence from the contempt proceedings he had initiated,
in addition to materials from Sonia’s contempt proceedings
that produced the order now appealed. Those materials from
Mark’s contempt proceedings appear in our transcript and bill
of exceptions, and Mark claims that they support his arguments
regarding the real estate taxes and the expenses for the wilder-
ness therapy program.
Sonia’s appellate brief contends we may not consider mate-
rials from Mark’s contempt proceedings, and Sonia filed a
“Motion to Strike Documents Outside the Trial Court Record”
simultaneously with her brief. We overruled Sonia’s motion
and reserved for plenary submission the question of what mate-
rials may be considered in this appeal.
We now determine that we need not resolve the question
of whether the disputed materials are properly before us. We
find that even if the disputed materials are considered, Mark’s
assignments of error regarding the real estate taxes and the
expenses for the wilderness therapy program lack merit.
3. Real Estate Taxes
(a) Factual Background
The December 2015 dissolution decree classified, valued,
and divided the parties’ substantial commercial and residential
real estate holdings. Sonia subsequently sought an order hold-
ing Mark in contempt for his refusal to pay real estate taxes
that accrued during the marriage for certain properties.
In an order entered on May 11, 2016, the district court did
not hold Mark in contempt for refusing to pay real estate taxes,
but stated that Mark could be held in contempt if he failed to
pay his portion of the taxes within 60 days:
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BECHER v. BECHER
Cite as 311 Neb. 1The unpaid real estate taxes prior to December 18, 2015[,]
is a marital debt to be paid equally by the parties. The
evidence in this contempt hearing showed the following
taxes to be unpaid: 2015 Sun Valley taxes of $2191.04;
2015 Mini Storage taxes of $4768.82; 2015 Dollar
General taxes of $13,208.08; and last half 2014 Dollar
General taxes of $6,997.08. The taxes are prorated to
December 1, 2015. 92% of the year the taxes are a marital
obligation. [Mark] owes 50% of 92% of the total unpaid
real estate taxes for 2015 and 50% of the total unpaid
real estate taxes for 2014. However, since [Sonia] has
demanded in her contempt proceedings that [Mark] pay
all the unpaid taxes, she has not succeeded in establishing
his contempt [in] these [proceedings]. [Mark’s] failure
to pay these taxes prior to this date is not contempt. The
same will not be the result if these taxes remain unpaid 60
days from now. But that is for another day. [Mark] is not
in contempt on these taxes at this time.
This order was later appealed on other grounds, and we
affirmed. See Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12(2018).
Sonia subsequently demanded that Mark pay his share of
the foregoing taxes and interest and penalties, all of which
Sonia had paid. When Mark did not pay, she filed the motion
for citation of contempt that gave rise to this appeal. At trial
in Sonia’s contempt proceedings, Sonia presented evidence
that supported her demand upon Mark for payment. Mark tes-
tified that he was aware of the May 11, 2016, order; that he
had read the order; and that he understood it obligated him to
pay the sums it listed. However, he took the position that he
did not pay those sums because he was confused by guidance
from one of his attorneys and his contact at the courthouse
did not inform him that he owed them. Mark also claimed that
Sonia had not paid him certain sums as ordered by the district
court and that to offset that amount, he should not be held in
contempt for refraining from paying Sonia sums that he was
ordered to pay by the May 11, 2016, order.
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BECHER v. BECHER
Cite as 311 Neb. 1The district court precluded Mark from adducing evidence
in support of the setoff defense. However, it allowed him to
present evidence about the issue solely for the purpose of con-
sidering whether such evidence mitigated against a “willful”
disobedience of the court’s May 2016 contempt order.
In its order entered September 10, 2020, the district court
found Mark in contempt of the May 11, 2016, order for fail-
ing to pay the real estate taxes itemized in that order within 60
days. It found that Mark had willfully disregarded the order
because he was aware of it, had read it, and understood that
it obligated him to pay the real estate taxes listed. The district
court’s purge plan directed Mark to pay within 10 days the sum
Sonia had sought in her demand—$13,359.52—plus interest.
(b) Analysis
In this appeal, Mark assigns that the district court erred in
finding him in contempt for not paying his share of the real
estate taxes recited in the May 2016 order and for requiring
him, in the purge plan, to pay the amount Sonia demanded in
connection with the real estate taxes. Mark suggests that the
May 2016 order did not explicitly direct him to pay a share of
the disputed real estate taxes. Alternatively, Mark contends that
the district court violated equitable principles in enforcing the
May 2016 order through contempt.
We begin by dispensing with Mark’s suggestion that the
May 2016 order did not specifically direct him to pay a share
of the now-disputed real estate taxes. The order stated:
[Sonia] has demanded in her contempt proceedings that
[Mark] pay all the unpaid taxes, [but] she has not suc-
ceeded in establishing his contempt [in] these [proceed-
ings]. [Mark’s] failure to pay these taxes prior to this date
is not contempt. The same will not be the result if these
taxes remain unpaid 60 days from now.
Although the district court’s articulation could have been more
direct, the foregoing language unmistakably ordered Mark to
pay a portion of the disputed real estate taxes.
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Cite as 311 Neb. 1Mark next asserts that the May 2016 order’s treatment of the
real estate taxes was “wrong” and that consequently, principles
of equity required the district court to construe it as creating no
obligations at all. Brief for appellant at 29. But even assuming,
without deciding, that the order was erroneous, it does not nec-
essarily mean that the district court erred in enforcing the order
in a contempt proceeding.
[8-11] When a judgment is attacked in a way other than by
a proceeding in the original action to have it vacated, reversed,
or modified, or by a proceeding in equity to prevent its enforce-
ment, the attack is a collateral attack. Fetherkile v. Fetherkile,
299 Neb. 76, 907 N.W.2d 275 (2018). Even if erroneous, a
judgment is not subject to collateral attack unless it is void,
such as would be the case where a judgment is entered without
jurisdiction over the person or subject matter. Id. A judgment
entered by a court which lacks subject matter jurisdiction is
void and may be attacked at any time in any proceeding. Davis
v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021). And refusal to
obey a void order or judgment is not contempt. Id.Although Mark argues that the district court should not have
enforced the May 2016 order, he does not argue that the May
2016 order is void, and we do not believe it is. Without further
explanation or citations to authority, Mark appears to take the
position the order was “wrong” because of “Nebraska’s prohi-
bition on modifying property judgments.” Brief for appellant at
29. This appears to be a reference to our holding that a prop-
erty division in a dissolution of marriage decree from which
no appeal is taken is not subject to modification and ordinarily
will not thereafter be vacated or modified as to such property
provisions in the absence of fraud or gross inequity. See Davis
v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003). But because
our law allows modification of property division under some
circumstances, it follows that a modification could result in, at
most, an erroneous order, not a void one.
[12] Mark’s attempt to collaterally attack the May 2016 order
is also precluded by the law-of-the-case doctrine. Although
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BECHER v. BECHER
Cite as 311 Neb. 1the May 2016 order was appealed, the real estate tax provisions
were not challenged, and we affirmed. See Becher v. Becher,
299 Neb. 206, 908 N.W.2d 12 (2018). A decision made at a
previous stage of litigation, which could have been challenged
in the ensuing appeal but was not, becomes the law of the
case; the parties are deemed to have waived the right to chal-
lenge that decision. Pinnacle Enters. v. City of Papillion, 302
Neb. 297, 923 N.W.2d 372 (2019). Thus, upon the issuance of
our mandate in the earlier appeal, Mark was deemed to have
waived any challenges to the May 2016 order, and the district
court was not obligated to reconsider whether the May 2016
order was correct in ruling on Sonia’s contempt motion.
Mark next claims that it was inequitable to find him in
contempt for his failure to pay the real estate taxes in light of
his setoff defenses. Again, we disagree. While the court may
entertain setoff considerations in fashioning its orders, see
Davis, supra, it is not up to a party to unilaterally manage what
is due and owing under a court’s order, especially when the
order is clear. See Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d
335 (2008) (when overpayments of child support are volun-
tarily made outside terms of court order, general rule is that no
credit is given for those payments, because such credit would
be tantamount to allowing one party to unilaterally modify
court’s order, which could result in deprivation of future sup-
port benefits).
Having established that the May 2016 order expressly
directed Mark to pay a portion of the real estate taxes recited
therein and equitable principles did not preclude the district
court from holding Mark in contempt if he failed to pay them,
we turn to the only remaining issue, which is whether the dis-
trict court abused its discretion in holding Mark in contempt
for his failure to pay and ordering him in the purge plan to
reimburse Sonia as she requested. We conclude that it did not.
[13,14] As we have already observed, civil contempt pro-
ceedings are instituted to preserve and enforce the rights of
private parties to a suit when a party fails to comply with a
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Cite as 311 Neb. 1court order made for the benefit of the opposing party. Sickler
v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). Willful dis-
obedience is an essential element of contempt; “willful” means
the violation was committed intentionally, with knowledge that
the act violated the court order. Id. Outside of statutory proce-
dures imposing a different standard or an evidentiary presump-
tion, the complainant must prove all elements of contempt by
clear and convincing evidence. Id.Sonia presented clear and convincing evidence that Mark
willfully disobeyed the real estate tax provisions of an enforce-
able order made for her benefit. Mark admitted at trial that he
was aware of the May 2016 order, that he had read the order,
and that he understood it obligated him to pay the sums it
listed. Yet, for reasons of his own, he chose not to do so. Under
these circumstances, we cannot say it was an abuse of discre-
tion for the district court to find Mark in contempt and order
him in the purge plan to reimburse Sonia for the amount she
paid for real estate taxes due to Mark’s failure to pay.
4. Wilderness Therapy Program
(a) Factual Background
Mark and Sonia pursued contempt proceedings against each
other, both of which concerned their daughter’s participation
in a wilderness therapy program in the summer of 2018. Mark
initiated his contempt proceeding against Sonia that summer.
The decree required the parties to “promptly inform and con-
sult with each other” about “any medical problem” and “imme-
diately notify the other” of “an illness or injury” involving the
minor children. Mark alleged in his contempt proceedings that
Sonia violated these provisions of the decree when she did
not inform him before placing the daughter in the wilderness
therapy program.
During those contempt proceedings, in July 2018, the fol-
lowing exchange took place between Sonia and her counsel:
Q [A]t the time you made the decision to place [your
daughter] at the [wilderness therapy program], was she ill?
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Cite as 311 Neb. 1A No, she wasn’t sick.
Q Was she injured?
A No.
Q Was she suffering from any new medical problem?
A No.
....
Q Do you believe that you were obligated to involve
and consult [Mark] prior to placing or making the deci-
sion to place [your daughter] at the [wilderness ther-
apy program]?
A No.
In September 2018, Sonia also submitted written closing
arguments in the contempt proceedings initiated by Mark in
which she stated that she should not be held in contempt
because the daughter “did not have a medical problem, and she
was not ill or injured.”
Later, in July 2019, Sonia initiated contempt proceedings
against Mark, claiming that Mark should be held in contempt
for refusing to pay his share of the cost of the wilderness
therapy program, which she contended was a medical expense
under the decree. As referenced above, the dissolution decree
ordered: “Mark shall provide health insurance for the children
if available through an employer or organization to which
he belongs. Mark shall pay 90% and Sonia shall pay 10%
of all medical, dental, and optical expenses for the child not
reimbursed by insurance after the first $480.00 per year.”
The decree ordered reimbursement of medical expenses within
10 days of proper presentation of the bill to the other party. In
addressing how the parties shall present medical expenses to
each other for payment, the district court ordered: “The parties
should continue to use participating providers whenever pos-
sible and both parties should agree in advance before having
the children treated by someone other than a licensed medical
doctor, physical therapist or licensed mental health profes-
sional or dentist.”
In September 2019, before the trial on the contempt pro-
ceedings initiated by Sonia had concluded, the district court
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Cite as 311 Neb. 1entered an order overruling Mark’s motion asking that Sonia
be held in contempt and found that Sonia did not violate the
decree. The district court’s order stated that “[t]he evidence at
trial showed that [the daughter] did not have a medical prob-
lem, and she was not ill or injured.” Whether the district court
erred by overruling Mark’s contempt motion is not before us
in this appeal.
According to the evidence presented at the trial on the
contempt proceeding initiated by Sonia, Sonia arranged for
the parties’ daughter to spend the entire summer of 2018 at
the wilderness therapy program, which was located in Utah.
The daughter, then age 16, was transported to the wilderness
therapy program by a professional escort team. The daughter
testified that she would not have gone to the wilderness therapy
program voluntarily if escorted by Sonia. Sonia paid the cost of
the wilderness therapy program, $51,892.50, in full.
Sonia was allowed to visit the daughter during the wilder-
ness therapy program. She testified that she observed the
daughter receive “lots of psychological help.” She testified that
the daughter received mental health counseling at the wilder-
ness therapy program that was similar to counseling she had
received in Nebraska, for which Mark had paid his share.
Sonia testified regarding the nature of the wilderness therapy
program. She testified that the daughter received “medical
treatment.” She testified that the daughter did not have “bro-
ken bones . . . so I would not call it medical that way, but she
had a broken soul, so it was health.” Sonia testified that she
sent her daughter to the wilderness therapy program “because
she had behavioral problems and I just wanted to send her
someplace where they were going to stop her from hurting
herself by taking drugs or running away in the middle of the
night.” At that point, Sonia testified, she “did not realize that
this could even be a health issue.” Sonia testified that “[l]ater
on,” she was advised by her counsel to submit the expenses to
the health insurer with whom Mark had health insurance for
the parties’ children. Evidence introduced at trial showed that
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Cite as 311 Neb. 1the health insurer sent reimbursement checks for the wilder-
ness therapy program totaling $25,378.67 to Mark. A portion
of the program was not covered by health insurance, because
Mark terminated the policy before the daughter completed
the program.
Mark admitted that he received the checks from the health
insurer for the wilderness therapy program and that he had
not paid those expenses. The “explanation of benefits” docu-
ments from the insurer reflecting this reimbursement are from
December 2018 and January 2019. Sonia asked Mark to sign
the checks over to her, but he did not.
In Sonia’s contempt proceedings, the district court rejected
Mark’s argument that the wilderness therapy program expenses
were not “medical expenses” under the decree. The district
court found Mark in contempt for not paying 90 percent of the
wilderness therapy program expenses and ordered him to pay
the expenses as part of the purge plan, plus interest.
(b) Analysis
On appeal, Mark contends that the district court erred in
holding him in contempt for not paying his share for the cost
of the wilderness therapy program and in requiring him to pay
his share and the associated interest as part of the purge plan.
Mark asserts that Sonia was judicially estopped from claim-
ing the wilderness therapy program was a medical expense
pursuant to the decree and that even if judicial estoppel does
not apply, Sonia’s claim should have failed on the merits. For
reasons explained below, we reject these arguments.
(i) Judicial Estoppel
[15-17] Mark argues that the district court erred by not
invoking the doctrine of judicial estoppel to preclude Sonia
from claiming that the cost of the wilderness therapy pro-
gram was a medical expense. Judicial estoppel is an equitable
doctrine that a court invokes at its discretion to protect the
integrity of the judicial process. Cleaver-Brooks, Inc. v. Twin
City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). The
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Cite as 311 Neb. 1doctrine of judicial estoppel protects the integrity of the judi-
cial process by preventing a party from taking a position incon-
sistent with one successfully and unequivocally asserted by the
same party in a prior proceeding. Id. Fundamentally, the intent
behind the doctrine of judicial estoppel is to prevent parties
from gaining an advantage by taking one position in a proceed-
ing and then switching to a different position when convenient
in a later proceeding. Id. We have previously quoted one
court’s explanation that the purpose of the rule is “‘to pre-
vent parties from playing fast and loose with the courts.’” Id.
at 289, 865 N.W.2d at 114, quoting Ryan Operations G.P. v.
Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996).
[18] The judicial estoppel doctrine, however, is to be applied
with caution so as to avoid impinging on the truth-seeking
function of the court, because the doctrine precludes a con-
tradictory position without examining the truth of either state-
ment. Cleaver-Brooks, Inc., supra. We have also held that
before a court may apply the judicial estoppel doctrine, “bad
faith or an actual intent to mislead on the part of the party
asserting inconsistent positions must be demonstrated.” Id. at
289, 865 N.W.2d at 114-15.
Mark contends that the district court should have applied
judicial estoppel to preclude Sonia from taking the position
that the costs of the wilderness therapy program were medical
expenses. He argues that Sonia took the position in his con-
tempt proceedings that their daughter did not have a “medical
problem” about which the decree would have required Sonia
to consult with Mark and was successful in persuading the
district court to agree. According to Mark, it was inconsistent
for Sonia to later take the position that the costs of the wilder-
ness therapy program qualified as “medical expenses” that the
decree required Mark to pay.
We do not deny that Mark has a plausible argument that
Sonia took inconsistent positions. One must acknowledge that
there is, at the very least, some tension between Sonia’s claims
that the daughter needed to go to the wilderness therapy
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Cite as 311 Neb. 1program for a reason other than a “medical problem,” but that
the cost of the wilderness therapy program was nonetheless a
medical expense.
But even if Sonia successfully persuaded the court to adopt
her position with respect to Mark’s contempt motion and then
took an inconsistent position with respect to her contempt
motion, that alone would not require the district court to apply
the judicial estoppel doctrine. As we have noted, in order
for the doctrine to be applied, there would also need to be a
demonstration of “bad faith or an actual intent to mislead” on
Sonia’s part. See Cleaver Brooks, Inc. v. Twin City Fire Ins.
Co., 291 Neb. 278, 289, 865 N.W.2d 105, 114 (2015). And
even if that showing were made, the district court would still
retain discretion as to whether to apply the doctrine. See id.On the question of whether there was a demonstration here
that Sonia acted with bad faith or had an actual intent to mis-
lead, we find a federal district court case applying Nebraska
law instructive. In Lueders v. Arp, 321 F. Supp. 3d 968 (D.
Neb. 2018), a person involved in two traffic accidents filed
lawsuits against parties he claimed were liable for his injuries
in the respective accidents. The plaintiff testified in a deposi-
tion for the first lawsuit that his injury was not exacerbated
by the second accident and that he did not intend to claim
any additional injuries. After the first lawsuit was settled,
however, the plaintiff filed the second lawsuit, claiming an
additional injury for the second accident. The second defend­
ant sought summary judgment, arguing that judicial estoppel
precluded the plaintiff from claiming he was injured in the
second accident after he previously testified that his injuries
were exclusively caused by the first. The federal district court
denied summary judgment, finding an absence of conclusive
evidence that the plaintiff acted with bad faith or had an actual
intent to mislead. It explained that while the evidence might
have been consistent with “‘playing fast and loose with the
courts,’” it would also be consistent with more innocent expla-
nations including “a plaintiff deciding, during the course of
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Cite as 311 Neb. 1medical evaluation and discovery, that perhaps the causation of
his injuries was more complicated than he thought.” Id. at 976,
quoting Cleaver-Brooks, Inc., supra.Like the court in Lueders, we do not find the evidence
here conclusive as to whether Sonia acted in bad faith or had
an actual intent to mislead. The positions Sonia took on the
respective contempt motions might have been consistent with
“‘playing fast and loose with the courts,’” but we think they
would also have been consistent with more innocent explana-
tions. See id. Perhaps Sonia honestly believed that it was possi-
ble to send the daughter to the wilderness therapy program for
something other than a “medical problem,” but for the wilder-
ness therapy program to nonetheless be a “medical expense.”
Or perhaps, during the course of the various proceedings,
Sonia’s views about the nature of the daughter’s needs when
she was sent to the wilderness therapy program changed. Sonia
provided testimony that appeared to allude to such a change in
perspective between the time she initially sent the daughter to
the wilderness therapy program and “did not realize that this
could even be a health issue” and the time of the trial on her
contempt proceeding after the expenses for the program had
been covered by health insurance.
We also note that Sonia is not the only party that took posi-
tions that are arguably inconsistent with respect to the nature of
the wilderness therapy program expenses. Although Mark took
the position in Sonia’s contempt proceeding that the costs of
the wilderness therapy program were not medical expenses, he
retained payments from his health insurer for those expenses.
There is obvious tension between claiming that expenses are
not medical in nature and nonetheless retaining reimburse-
ment from a health insurer for those expenses. Moreover, if
permitted to retain the payments from the health insurer and
not required to reimburse Sonia, Mark would not only have
avoided paying the wilderness therapy program expenses, but
he would have emerged from the various transactions with a
substantial profit.
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Cite as 311 Neb. 1[19] Faced with inconclusive evidence as to Sonia’s subjec-
tive motivation and the issues presented by Mark’s position
summarized above, our standard of review becomes important.
We have held that an appellate court reviews a court’s appli-
cation of judicial estoppel to the facts of a case for abuse of
discretion and reviews its underlying factual findings for clear
error. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427(2010). As the U.S. Court of Appeals for the First Circuit has
explained, the subjective element of judicial estoppel is one
of the reasons its application is reviewed under a deferen-
tial standard:
[D]eferential review often is appropriate for matters in
which the trial court is better positioned . . . to decide
the issue in question. Judicial estoppel is such a matter.
Determining whether a litigant is playing fast and loose
with the courts has a subjective element. Its resolution
draws upon the trier’s intimate knowledge of the case at
bar and his or her first-hand observations of the lawyers
and their litigation strategies.
Alternative System Concepts, Inc. v. Synopsys, 374 F.3d 23, 31
(1st Cir. 2004) (internal quotation marks and citation omitted).
This is certainly a case in which the district court’s knowl-
edge of the parties, their disputes, and their litigation tactics
far exceeds ours. The district court was unquestionably in a
better position to determine whether Sonia took inconsistent
positions in bad faith or with an actual intent to mislead. And
having seen and heard the respective contempt proceedings
firsthand, the district court was also in a better position to
weigh whether, in light of equitable considerations, judicial
estoppel should not have been applied to benefit Mark. See
Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb.
278, 865 N.W.2d 105 (2015) (judicial estoppel is equitable
doctrine that court invokes at its discretion). See, also, New
Hampshire v. Maine, 532 U.S. 742, 751, 121 S. Ct. 1808, 149
L. Ed. 2d 968 (2001) (explaining that application of judicial
estoppel does not depend upon “exhaustive formula” and that
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Cite as 311 Neb. 1“[a]dditional considerations may inform the doctrine’s appli-
cation in specific factual contexts”). Given the foregoing, we
cannot say the district court abused its discretion in declining
to apply judicial estoppel.
(ii) Wilderness Therapy Program
as Medical Expense
Mark claims that, even if his judicial estoppel argument is
not successful, the district court erred in finding him in con-
tempt for not paying part of the cost for the wilderness therapy
program. Mark does not dispute that the wilderness therapy
program offered counseling and behavioral health services, but
according to him, the language of the decree’s medical expense
provision does not require payment for such services.
[20] The parties correctly frame the issue as whether the
decree’s reference to medical expenses includes the expenses
associated with the wilderness therapy program the daughter
attended. A decree is a judgment, and once a decree for dis-
solution becomes final, its meaning is determined as a matter
of law from the four corners of the decree itself. See Braun
v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020). Because the
meaning of “medical expenses” as used in the decree presents
a question of law, we reach a conclusion independent of the
determination reached by the trial court. See id. Our review of
the language of the decree leads us to conclude that the district
court did not err in classifying the wilderness therapy program
expenses as medical expenses for which Mark was partly
responsible under the decree.
The language of the dissolution decree contemplated that
medical expenses could include mental health services. It made
Mark responsible for a significant portion of the children’s
“medical, dental, and optical expenses” properly presented
to him by Sonia. In explaining how the parties shall present
expenses to each other for payment, the decree directed the
parties to “continue to use participating providers whenever
possible and . . . agree in advance before having the children
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Cite as 311 Neb. 1treated by someone other than a licensed medical doctor, physi-
cal therapist or licensed mental health professional or dentist.”
(Emphasis supplied.) Because the language providing a proc­
ess for the presentation of medical expenses included mental
health services, we conclude that those expenses are medical
expenses under the decree.
The decree’s use of “medical” to encompass mental health
treatment is consistent with a widely accepted understanding of
that term. As one court has explained:
Medicine is the art and science of dealing with the pre-
vention, cure and alleviation of diseases and the preserva-
tion and restoration of health. It is a science not limited to
the treatment and care of physical or bodily ills, but one
which also includes the care of the patient’s mental health
and the prevention or alleviation of mental illnesses.
Sterbling v. Sterbling, 35 Ohio App. 3d 68, 70, 519 N.E.2d
673, 676 (1987). This understanding of “medical” has been
used in Nebraska case law and statutes. See, e.g., Neb. Rev.
Stat. §§ 71-8215 (Reissue 2009) and 38-1207 (Reissue 2016)
(emergency medical service defined as organization respond-
ing to need for medical care “in order to prevent loss of life
or aggravation of physiological or psychological illness or
injury”); State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012)
(where individual is alleged to be victim of sexual assault,
statements reasonably pertinent to medical diagnosis and treat-
ment of both physical and psychological trauma are admis-
sible under medical diagnosis or treatment hearsay exception).
Cases from other jurisdictions interpreting dissolution decrees
have also read “medical” expenses in this broad sense. See,
McDonald v. Taylor, 106 N.C. App. 18, 415 S.E.2d 81 (1992);
Cedergreen v. Cedergreen, 811 P.2d 784 (Alaska 1991); Bucy
v. Bucy, 23 Conn. App. 98, 579 A.2d 117 (1990); Martin v.
Martin, 538 So. 2d 765 (Miss. 1989); Sulman v. Sulman, 510
So. 2d 908 (Fla. App. 1987); Kahn v. Kahn, 23 Ariz. App. 269,
532 P.2d 541 (1975).
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Cite as 311 Neb. 1Mark further argues that there was no evidence that the
cost of the wilderness therapy program was reasonable or that
a less expensive option would have been ineffective. He also
claims that Sonia sent the daughter to the wilderness therapy
program for her own convenience rather than medical neces-
sity. We find that none of these arguments are relevant to
whether the expenses qualified as “medical expenses” under
the language of the decree. And because we are not persuaded
that the district court erred in determining that the wilderness
therapy program expenses were medical expenses under the
decree, we conclude that the district court did not abuse its
discretion in finding Mark in contempt for failing to pay his
share of those costs and in ordering him to do so as part of the
purge plan.
5. Interest
As described above, the district court found Mark in con-
tempt for disobeying court orders to pay various expenses and
ordered Mark to reimburse Sonia for her payment of those
expenses as part of the purge plan. Relevant to this section,
those expenses included sums paid by Sonia for real estate
taxes, the wilderness therapy program expenses, and 2018
orthodontia expenses for one of the children. For each of these
categories, the district court ordered Mark to pay “prejudgment
interest,” accruing from different dates for each expense, with
all accrual dates preceding entry of the contempt order. In fix-
ing the interest rate for each item, the district court cited to
the “Nebraska Judgment Interest Rate” table distributed by the
State Court Administrator and ordered the specific interest rate
in effect on the accrual date designated by the district court.
On appeal, Mark asserts that the district court erred in
assessing “prejudgment interest” against him. In opposing the
“prejudgment interest” awarded, Mark does not challenge the
amounts upon which the district court ordered such interest
to accrue, the accrual dates, or the interest rates; therefore,
we do not analyze the correctness of these determinations. We
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Cite as 311 Neb. 1confine our analysis to Mark’s only argument on this point—
that the district court was statutorily prohibited from order-
ing “prejudgment interest” and that thus, the order must be
reversed. As we will explain, the issue is not that simple.
Although the district court stated that it was awarding Sonia
“prejudgment interest,” Sonia contends that some of the inter-
est it ordered Mark to pay was actually postjudgment interest.
As its name suggests, “[p]rejudgment interest is interest due,
pursuant to statute, [as interest that accrues] prior to the rendi-
tion of a judgment.” First Nat. Bank v. Bolzer, 221 Neb. 415,
421, 377 N.W.2d 533, 537 (1985). Prejudgment interest ends
and postjudgment interest begins to accrue “from the date of
entry of judgment until satisfaction of judgment.” Neb. Rev.
Stat. § 45-103.01 (Reissue 2016). See, Neb. Rev. Stat. § 45-104(Reissue 2016); Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d
40 (2019).
[21] We agree that the interest the district court ordered
Mark to pay on the sums owed for the real estate taxes falls
into the category of postjudgment interest. A “judgment” is a
court’s final consideration and determination of the respective
rights and obligations of the parties to an action as those rights
and obligations presently exist. Nichols v. Nichols, 288 Neb.
339, 847 N.W.2d 307 (2014). See Neb. Rev. Stat. § 25-1301(1)
(Cum. Supp. 2020). The court’s May 11, 2016, order made
such a determination regarding real estate taxes.
In contrast to the interest on the real estate taxes, it is less
clear that the interest the district court ordered Mark to pay
on the sums he owed for the wilderness therapy program
and orthodontia was postjudgment interest. The district court
ordered interest for the wilderness therapy program and orth-
odontia expenses to begin to accrue October 18, 2018, and
August 28, respectively, at the postjudgment interest rates in
effect on those accrual dates. And while the dissolution decree
addressed Mark’s general obligations for medical expenses,
the final consideration and determination of his obligations
for those expenses occurred when the district court entered its
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Cite as 311 Neb. 1contempt order on September 10, 2020. As we will explain,
however, even if the district court ordered the interest to
accrue on those sums prior to the judgment, the district court
did not necessarily err by doing so.
Mark’s position that the district court was statutorily pro-
hibited from ordering interest to accrue prior to the judgment
is based on Neb. Rev. Stat. § 45-103.04 (Reissue 2021). That
statute provides that “[i]nterest as provided in § 45-103.02
shall not accrue prior to the date of entry of judgment for . . .
[a]ny action arising under Chapter 42[.]” § 45-103.04. Mark
claims that this statute prohibited an award of prejudgment
interest, because “Neb. Rev. Stat. § 42-370 provides the statu-
tory basis for contempt cases in domestic relations matters.”
Brief for appellant at 34. While we note that this court has long
recognized that “[t]he power to punish for contempt is incident
to every judicial tribune, derived from its very constitution,
without any expressed statutory aid,” Kregel v. Bartling, 23
Neb. 848, 852, 37 N.W. 668, 670 (1888), we will nonetheless
assume for the sake of argument that this action arises under
chapter 42 of the Nebraska Revised Statutes. Even with that
assumption, the language of § 45-103.04 would only preclude
the district court from ordering prejudgment interest pursu-
ant to Neb. Rev. Stat. § 45-103.02 (Reissue 2021). We do not
read it to limit a court’s equitable powers to order a party to
pay interest.
[22-25] Our cases recognize that a court of equity has dis-
cretion to allow or withhold interest as is reasonable and just,
except in cases where interest is recoverable as a matter of
right. Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002).
In addition, contempt proceedings may both compel obedience
to orders and administer the remedies to which the court has
found the parties to be entitled. Johnson v. Johnson, 308 Neb.
623, 956 N.W.2d 261 (2021). Through its inherent powers of
contempt, a court may order restitution for damages incurred
as a result of failure to comply with a past order. Becher
v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018); Sickler v.
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Cite as 311 Neb. 1Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). And a court’s
continuing jurisdiction over a dissolution decree includes the
power to provide equitable relief in a contempt proceeding.
Sickler, supra. Where a situation exists which 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.Under these principles, the district court had discretion to
order interest to accrue prior to the date of the contempt order.
Considering that the district court ordered the interest to accrue
on expenses Mark was obligated to pay and that Sonia was
deprived of the use of funds she paid toward those expenses,
we find no abuse of discretion.
6. Attorney Fees and Expenses
In moving for a citation of contempt, Sonia requested rea-
sonable attorney fees and any other relief deemed equitable by
the court. At trial, Sonia presented evidence of the fees and
expenses she had incurred in pursuing her contempt action.
The district court’s contempt order awarded Sonia $7,346.96
for attorney fees and expenses and ordered Mark to pay that
sum through the court within 30 days.
On appeal, Mark assigns that the district court erred in
ordering him to pay all of Sonia’s attorney fees. He does not
dispute that Sonia incurred attorney fees and expenses in the
amount awarded. Instead, Mark asserts that he argued and
acted reasonably in opposing Sonia’s efforts to obtain the pay-
ments she believed Mark owed to her, and he asks us to reduce
the amount of attorney fees awarded to Sonia to the extent that
he has prevailed on appeal.
[26-29] Costs, including reasonable attorney fees, can be
awarded in a contempt proceeding when there has been a find-
ing of contempt. See 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). Attorney fees in contempt cases fall under a
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Cite as 311 Neb. 1court’s inherent power to do all things necessary to enforce
its judgment. Wetovick v. County of Nance, 279 Neb. 773, 782
N.W.2d 298 (2010). A trial court’s decision awarding or deny-
ing attorney fees will be upheld on appeal absent an abuse of
discretion. McCullough v. McCullough, 299 Neb. 719, 910
N.W.2d 515 (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.Upon our review of the record, we conclude that the district
court’s award of attorney fees to Sonia was not clearly unten-
able. Sonia incurred attorney fees in her contempt action to
secure substantial court-ordered payments from Mark, and she
prevailed. Our opinion today affirms the district court’s ruling,
modifying a relatively small portion of its order. We conclude
that the district court did not abuse its discretion in its award of
attorney fees and expenses to Sonia.
V. CONCLUSION
We modify the district court’s order to delete contempt find-
ings and purge provisions related to the children’s 2016 medi-
cal expenses and future medical expenses. Finding no merit to
Mark’s remaining assignments of error, we otherwise affirm.
Affirmed as modified.
Miller-Lerman, J., dissenting in part.
In her successful effort to avoid contempt, Sonia previously
and unequivocally asserted that the cost of wilderness camp
was not a medical expense and the district court found in its
September 26, 2019, order that “[t]he evidence at trial showed
that [the daughter] did not have a medical problem . . . .” Sonia
is now judicially estopped from claiming the cost is a medical
expense, and I would reverse that portion of the September
10, 2020, order to the extent it found Mark in contempt for
not paying for the wilderness camp as a medical expense.
Accordingly, I respectfully dissent from that portion of the
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BECHER v. BECHER
Cite as 311 Neb. 1majority opinion which concluded that Sonia was not judicially
estopped from claiming the wilderness camp cost as a medical
expense and which affirmed the district court’s finding that
Mark was in contempt for not paying for the wilderness camp
as a medical expense.
Although I recognize there is plenty of animus and blame
to go around, I write separately to state that in my view, the
course of this litigation offends the integrity of the courts.
I recognize that the definition of “medicine” can vary with
the context. However, what I find offensive in particular is
Sonia’s willingness to take convenient positions and play the
court accordingly. See Cleaver-Brooks, Inc. v. Twin City Fire
Insurance Co., 291 Neb. 278, 865 N.W.2d 105 (2015).
In opposition to Mark’s contempt claim to the effect that
Sonia failed to consult with him before sending the daughter
to wilderness camp, Sonia testified, and repeated in closing
argument, that consultation was not necessary because it was
not medical treatment. Having been convinced by Sonia, in its
September 26, 2019, order, the district court determined that
the wilderness camp expense was not medical. Mark accepted
this ruling and did not appeal.
But when Sonia later sought reimbursement for the camp fee
and the cost of the escort transportation which took the daugh-
ter to the wilderness camp at 3 a.m., thus permitting Sonia to
take a trip to Spain and denying Mark access to his daughter,
and after insurance paid Mark, Sonia conveniently labeled all
the foregoing as medical expenses.
Convinced yet again by Sonia, in its 2020 order, the district
court ignored the law of the case and Sonia’s previously win-
ning position and determined that this time, the expenses were
medical and Mark was in contempt for not paying them.
I cannot attribute Sonia’s incompatible and inconsistent
positions as merely trial strategy or as reassessment of the
same facts. They can only be described as an informed deci-
sion to mislead. Sonia’s conflicting positions are more than
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BECHER v. BECHER
Cite as 311 Neb. 1inconsistent, they are an affront to the integrity of the court
process. Accordingly, in my view, Sonia should be judicially
estopped from asserting the late-breaking claim that the cost
of the wilderness camp is medical, and I would reverse the
portion of the order which found Mark in contempt predi-
cated thereon.
Freudenberg, J., joins in this dissent.